The Volokh Conspiracy

(Update:  Sorry about leaving off a title!  perils of posting from an Ipod!)

Today at noon, the Whitney R. Harris World Law Institute at Washington University Law School is holding a debate on targeted killing using drone aircraft.  It features Notre Dame’s Mary Ellen O’Connell and yours truly, and moderated by Minnesota Public Radio’s Matt Sepic.  Mary Ellen and I each hold strong views on this topic, of course, and I am greatly looking forward to the discussion.   The event will be webcast, live, I believe, and then available archived at the website if anyone is interested.  My thanks to the folks at the Harris Institute, and Leila Sadat particularly, who invited us, and congratulations to the Institute on its 10th anniversary.  The Harris Institute could not have picked a more timely discussion for its anniversary debate, as a quick glance at the newspapers reveals.  The link to the Harris Institute event notice is here.

I’ve just finished the new Woodward book, Obama’s Wars, and it is intensely interesting on the topic of drones and targeted killing.  If anyone thinks that the President, the Vice-President, and the senior national security team are not convinced that it is effective and the most discriminating form of use of force available, they should read this book carefully.  Ramping it up is fundamental to the Obama administration’s war strategy, as I‘ve repeatedly said for the last couple of years, in part because it is embedded in counterinsurgency to take out the safe havens, and because it is the the thin tip of the spear in counterterrorism.

That, according to the first rate reporting from Adam Entous, Julian Barnes, Siobhan Gorman, and others at the Wall Street Journal’s first rate national security reporting team, is what is driving the ramping up now: look back at Woodward’s book on the strategy discussions from a year ago, and what the Journal reporters are noting on the front pages, and both sides of the ramp-up become clear.  Counterinsurgency in Afghanistan requires taking out the safe havens; counterterrorism against the terrorist groups in Pakistan is a function of drones.  More drone strikes either way, quite apart from their strengths in costs, precision, discrimination, etc.

One of the important takeaways from the Woodward book, however, is that the counterterrorism strategy depends far more than I had realized upon the CIA’s network of human intelligence on the ground, and not merely on Pakistan intelligence sources.  The drone targets are a function of every other conceivable intelligence resource from humans on the ground to signal intelligence.  Another is the repeated theme that Al Qaeda is much more involved with the “franchise” and “affiliated” terrorist groups seeking to expand ops beyond Mumbai and south Asia into Europe than I had believed – I had come round to seeing them as inspired by but not really coordinated through or with, but the Woodward book puts Al Qaeda as very much in the game.

Seen from the strategy decisions made a year ago, the moment has arrived in which the administration is brushing aside objections to leaning on Pakistan – blowback, nuclear arsenal, etc. – and deciding it is put up or shut up time.  This all has important implications for the overt, non-covert war – it is AfPak as a strategic matter, and quite possibly – for important strategic players – much, much more Pakistan than Afghanistan.  But the conflict is an AfPak one as far as important US strategic considerations run, and that means overt, direct Nato attacks across the border on safe havens, drone attacks, and no pretense that it is a deniable CIA operation.  We haven’t reached quite that point yet, but we might get there sooner rather than later.  The alternative is a ramping down of Afghanistan counterinsurgency, and a ramp up of CIA deniable operations in Pakistan, as counterterrorism.  This is the Biden preferred option, in the context of the various strategic reviews conducted by the administration, on the view that defeating the Afghan Taliban in any meaningful way is not possible, and so Al Qaeda and affiliated groups sheltered in Pakistan are the issue.  Which is to say, Pakistan is the real source of the poison.

That strategic debate can go many ways, but the one lesson out of it is that drones and targeted killing will get only more important, not less.

Adam Entous, Julan E. Barnes, and Siobhan Gorman have an outstanding piece of national security reporting on the front page of the weekend Wall Street Journal, “CIA Escalates Campaign in Pakistan: Pentagon Diverts Drones to Afghanistan to Bolster Campaign Next Door.” This is a fine piece of journalism that integrates reporting from AfPak and Washington to present findings that are new to the public, and more than merely a deliberate leak to a leading reporter from a government official or a magazine story rather than hard news.  My congrats to what is emerging as a leading national security affairs reporting team at the news pages of the Journal.  (Here is Greg Miller’s account in the Washington Post, Sunday, front page.)

September 2010 saw another sharp uptick in the number of drone attack missions in Pakistan.  The question behind the raw numbers is what strategic purpose they aim at.  One strategic mission of drone missions in Pakistan is counterterrorism aimed at Al Qaeda leadership.  This uptick in September 2010 points to a quite distinct function – rather than counterterrorism as its own mission, the purpose is, as article says in a telling quote, “force protection” for the US counterinsurgency troops in Afghanistan.  The articles details an increasing impatience of the US military and political leadership with Pakistan’s government, and an increased willingness both to strike overtly using NATO military assets quite openly across the border, as happened in the last week, as well as to use CIA Predator attacks in the border regions.

Moreover, the “force protection” use of drones described in these articles is distinct from still another strategic use of drones, one recounted in earlier articles in the last two weeks, talking about their use to disrupt the planning of attacks against European targets by groups such as the Haqqanis, regional groups thought to be seeking to use people with European or American passports to strike from Pakistan against Western targets; Mumbai shifted further west, so to speak.  As Woodward quotes someone in his new book, “Mumbai changed everything.”  It is because of these overlapping but also separate and shifting roles for drones that it seems to me worthwhile to analytically distinguish them, as I do below.

Thus, the CIA attacks are now on safe havens for Taliban who are part of the fight in Afghanistan but taking refuge in Pakistan.  Rather than simply a raiding strategy against terrorist leadership in Pakistan as an exercise in counterterrorism, the drones are now used a raiding strategy against the safe havens as part of the Afghanistan counterinsurgency surge.  Hence the desire of the Pentagon to divert drone aircraft – which are in demand in Afghanistan for a variety of missions – from Afghanistan to attacks in Pakistan on bases that are seen as links for attacks on US forces.

This is an important shift, or addition, to the role of drones in Pakistan.  (Of course this has always been part of the use of drones; I’ve hardened the analytic categories to make them clearer, but really it is a question not of something new, but of scaling it up.)  The article makes note of something else, too – that drone aircraft are not being produced fast enough to meet demand for them in AfPak.  The article has excellent graphics, including a chart on numbers of attacks on a month by month basis, and maps.

As it happens, this article is timely for me, as I am completing this weekend the draft of an essay for the Hoover Institution on a roster of strategic uses of drones.  In bullet point form, here is an analytic breakdown of categories, as I see them, of drone use.  (I’m not providing more than the bullet title, even though the result is overly-cryptic; the full essay will be available once finished and edited at Hoover’s website or SSRN.  Also, if anyone is interested in my earlier published writing on drone warfare and the law, at SSRN’s free downloads, see this book chapter, this lengthy piece in the Weekly Standard, and two pieces of Congressional testimony, here and here.)

• Surveillance (sometimes policy and legal people forget this in all the controversy over weaponized drones and targeted killing).
• Drones used by the military or CIA in Afghanistan as part of combat operations and counterinsurgency.
• CIA drones in Pakistan used in counterterrorism against high value terrorist leadership (ie, against senior leadership such as Mullah Omar or Bin Laden or others in AQ).
• CIA drones in Pakistan used in counterterrorism against high and lower level operatives, including the current strikes against locations and camps of terrorist groups apparently planning new strikes in Europe or the US (as some of the CIA drone strikes undertaken now are apparently intended to do, such as those against the Haqqanis).
• CIA drones used in Pakistan in support of Afghanistan counterinsurgency operations against safe havens for Afghanistan Taliban.
• CIA (or even military) drones used in Pakistan in support of Pakistan government counterinsurgency operations against the Pakistan Taliban, separate from the fight in Afghanistan.
• CIA drones used in counterterrorism against AUMF targets (ie Al Qaeda or associated forces, in the context of participants in the current non-international armed conflict (NIAC), as legally defined), whether in Yemen, Somalia, or conceivably elsewhere.
• CIA drones used either as part of the AUMF-NIAC or else as (legally independent) self-defense operations, against US citizens who have taken up terrorist participation and made themselves subject to targeting (operationally not really different, but legally potentially raising different law and policy questions because of the US citizen status).
• CIA drones used somewhere down the road against terrorists unrelated to anything going today, whether in an ongoing armed conflict or as an operation in self-defense.

The list proceeds more or less according to an expanding political geography starting with Afghanistan; it deliberately leaves aside Iraq for these purposes.  The main internal analytic axes are political geography; who uses the weapon and on whose behalf; and who is targeted by the weapon.

The long-term question of drones is whether they are going to remain a remarkably useful weapon in support of a large variety of missions in different ways, or whether instead the US decides to try and leverage them into something much more strategically radical – the new strategic air power.  In other words, the latest iteration of a very old dream, the ability to win wars from the air.  But this time with a twist.

Strategic air power in the past both promised to win because it could deliver apparently huge amounts of kinetic energy, but then tended to lose (or at least not be decisive)  because the huge amounts could not be targeted in order to achieve the required strategic aims.  (For a discussion of recent, Kosovo war-era debates over the ability to win wars from the air, look at this excellent article from Byman and Waxman.  Moreover, Israel went down the air power road in Lebanon, hoping to avoid serious ground engagement, and quickly ran into major problems.)

Drone attacks and targeted killing, in the full realized sense with a range of vehicles from very large to tiny, with weapons ranging from large to small, and with improved sensors arrays and processing integration, hold out the hope of being able finally to deliver the blows precisely where one wants.  We think of the virtue of targeted killing as being discrimination for its own sake, limiting the damage of war.  In pursuit of strategic air power victory, however, we might do better to think of discrimination in targeting for the sake of (finally) being able to put power precisely where we want it.

It might work out that way; it might not.  Drones have not yet been met in the field with counters – surface to air missiles, for example, of the kind that dealt a crippling blow to Soviet air superiority in Afghanistan.  Or technological counters to the remote-control communications systems that allow drones to be directed from near or far away. What concerns me from a strategic standpoint is that the US might decide that drones are cheap, reduce risks to but also need for manpower, and that it finally has the ability to achieve its aims (as Vice President Biden has implied in his early-on stance in favor of drone counterterrorism rather than counterinsurgency war in AfPak), not through the burden and cost of boots on the ground, but over the horizon using this new iteration of the dream of strategic air power.

It seems unlikely to me that this will work.  I understand the attraction.  And I also understand that it does represent an advance on an earlier version of strategic air power – the post WWII idea that strategic nuclear air delivered weapons meant we no longer needed a large standing army, because of the nuclear deterrent in an over the horizon way.  That version of strategic air power could not work to the end of reducing the need for a conventional army, because the threat of nuclear war was too monumental to be useful at the margins.  You could never actually pull the nuclear trigger over something important but not so important to go to nuclear war over.  So it turned out that you either ceded ground incrementally at the margin, or else you went back to having a conventional army that could respond at the margins.

Drones potentially make that less of a problem, precisely because they allow calibrated responses in a discriminating way.  But it seems doubtful to me that a technology will not rapidly develop technological responses, and that in any case, it is a huge advance, but not a truly decisive one; it seems to me likely to remain a useful tool if regarded that way, not a panacea for having a sizable military.  In any case, history is littered with instances of believing that at last we had found the successful path to strategic air power victory.

Update: Woodward’s book, which I’m reading now, discusses many issues relevant here.  Four stand out for this topic.

• First, he notes that the number of drone strikes under Bush was tiny, in large part on account of an enormous fear of the consequences of civilian casualties, even in numbers that the administration believed were entirely justifiable – fears, in other words, of accusations of atrocities, war crimes, etc., from the fear of a de-legitimizing activist campaign.  The Obama administration, believing correctly that it was immune to such campaigns, did not have to worry about such repercussions.
• Second, the earliest drone strikes in Pakistan under Bush had only limited effectiveness, because the US, out of concerns for Pakistani sovereignty, advised the government of impending strikes; elements of Pakistan’s intelligence service warned Al Qaeda, and they dispersed from the target zone prior to the strike.
• Third, he notes that Michael Hayden, while embracing the use of drones as counterterrorism against high value targets, did not believe that it could “win” the struggle against Al Qaeda or the jihadist extremists, because the pinpricks were not enough to root out the movement even if leaders were killed.  Hayden thought the drones essentially tactical rather than strategic.
• Fourth, he says that the reason the drone were, and are, effective is because of a strong effort over five years to create a ground level network of intelligence of critical value – developed it seems out of the CIA from human intelligence.  That, integrated with massive advances in signal and communication surveillance, has enabled drones equipped with still not much more than tactical video surveillance in the air to be directed to the crucial targets.  It is not the surveillance gathered by a weaponized drone that matters so much as the intelligence gathered in a combination of on the ground human intelligence and communications monitoring that allows an effective strike.

One of the biggest implications for drone strikes by the CIA in Pakistan and Afghanistan, as I read the Woodward book, then, is that the CIA (under Hayden and surely the same under Panetta) regards its human intelligence and a certain on the ground presence, as well as communications monitoring outside of the tactical use of the drones themselves, as crucial to their success.  The drones are effective – insofar as the ground is prepared by other kinds of intelligence activities and technologies.

Lawfare is not just the name of a great new national security law blog, it’s also the subject of a conference this Friday at the Case Western Reserve University School of Law.  Details, including information on viewing the webcast, here.

UPDATE: Thoughts on “lawfare” and “Lawfare!” by Jack Goldsmith at Lawfare.

Due to the press of a deadline for something else, I am not able to comment as fully as this all deserves, but I wanted to flag this morning’s editorial in the Washington Post, essentially defending and, in some ways, extending the Obama administration’s position on targeted killing, whether using drones or human teams, including American citizens under certain circumstances.

[DOS Legal Adviser Harold] Koh correctly asserted that the 2001 Authorization for the Use of Military Force, international law and the country’s inherent right to defend itself put it on solid legal footing for such attacks, including those outside traditional battlefields … In his [March ASIL 2010] speech, Mr. Koh did not address whether U.S. citizens could be the targets of these strikes.

The American Civil Liberties Union took up Mr. [Anwar] Aulaqi’s cause last week, arguing that it would be unconstitutional for the government to carry out such a strike against an American, especially one located outside a recognized war zone.

U.S. citizens who take up arms against the country are enemy combatants and are indistinguishable on the battlefield from other belligerents. The political, legal and moral calculus of addressing the threat posed by an American enemy combatant such as Mr. Aulaqi changes when he is located outside a recognized war zone. The discussion should be — and we trust would be — dramatically different if he were residing in an allied country willing to use lawful means to capture and turn him over.

But when a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance. Mr. Koh said in his speech that this practice is already followed, even in cases involving non-citizens.

I agree with the fundamentals of the editorial; so does Ben Wittes, commenting at the new – and I suspect soon to be indispensable – national security blog, Lawfare.  Not everyone does, to be sure; over at Opinio Juris, my co-blogger Kevin Jon Heller argues that, at least outside of a recognized war zone, an American is entitled to adversarial judicial process, and adds:

We would never allow a state to execute an American citizen simply because the Governor has decided that he was guilty of capital murder (or, worse, that he intended to commit capital murder at some unspecified point in the future); such an execution would be a paradigmatic violation of due process. So how can anyone argue in good faith that due process permits the targeted killing regime adopted by the Obama administration?

There is, of course, an easy and fair solution to this problem: require the government to obtain judicial authorization for a targeted killing by proving, in an adversarial hearing, that the American citizen has committed a capital crime. If the government has reason to believe that notifying the target of his status will cause him to disappear, it can appoint counsel — perhaps the ACLU or the CCR? — to represent him in a secret proceeding.

It’s an interesting scenario – CCR Michael Ratner representing a gone-missing-in-Yemen Aulaqi, getting a chance to review the government’s secret evidence, being able to review the secret methods of secret evidence collection in a secret proceeding, not only the contents of which presumably need to be kept secret but the very fact of the proceeding as well?   I wonder what the internal reaction to this scenario would be inside Koh’s shop at the State Department, let alone at DOJ, DOD, NSC, DNI, or CIA.  But now a couple of final comments which go to issues that haven’t been so much discussed.

First, if one reads the ACLU-CCR filing as well as the Washington Post opinion piece by the two advocacy groups which has also been discussed at Lawfare and Opinio Juris, it is hard not to notice that the underlying argument is only secondarily about an American citizen being targeted – and primarily about the idea that an armed conflict in a legal sense is necessarily geographically bounded, limited to particular battlefields and acknowledged “theatres of conflict.”

On the citizenship point, one understands the problem – the progressive left of which these groups are a part tend to put no weight on citizenship much of the time, treating it as a morally accidental and therefore morally suspect category – except when it comes time when it can be invoked to offer protection.  (One might regard this as a theory of citizenship premised on the view that it promises only goodies, and is merely a mechanism for internalizing benefits and externalizing costs.  As with most situations of continuous moral hazard, such a conception can’t really last.)  At the end of the day, the advocacy groups see the citizenship issue merely as a strategic argument for protecting a group (Americans) that has no actual special moral claim.  And so, whatever the argument over targeted killing are at any given moment to advance the cause of prohibiting them, the advocacy work won’t be done until it also addresses the presumptive human rights of non-Americans equally.  Citizenship is merely strategic.

Second, going to the geographic definition of war as a legal concept.  This idea that armed conflict as a matter of its legal conception is geographically limited in this way has gained currency primarily from the writings of the International Committee of the Red Cross’s Nils Melzer, who so argued in an important book, Targeted Killing in International Law.  And also Notre Dame law professor Mary Ellen O’Connell, who has argued this proposition (as well as an associated claim that all participation by CIA personnel in the use of force is an international crime).  I cannot say that these claims – although heroically urged by the advocacy groups and their academic allies – have a basis in the law of war as the US (or really, leading war-fighting states) has traditionally understood it.  Certainly the State Department, under Harold Koh, no less, does not even entertain it.  And even military lawyers who are very far from defending the Bush administration’s war on terror do not endorse the “geographical” limitation.  (I have a complicated legal view of all this, related to self-defense and armed conflict, but not one that really matters for this purpose.)

Rather, the customary view of the US – and the traditional view of war-fighting states – has always been that the fight can lawfully go wherever the participants go.  It goes where they go. “Battlefield” and “theatre of conflict” are not legal terms in the treaty law of war, not as limitations on the armed conflict itself.  The law of war accepts as a practical reality that the armed conflict is where hostilities happen to take place, which means, of course, that the armed conflict is a reflection of hostilities and hostilities can be undertaken as a matter of jus in bello where the participants are.  The reason for this traditional rule is obvious – if the armed conflict is arbitrarily limited in this way, then it invites combatants to use territory outside of the “armed conflict” as a haven.  Under some circumstances, for diplomatic or other political reasons, a state might choose not to attack even though participants are taking haven, but the reason is not a matter of the law of war jus in bello.

The ACLU-CCR view acknowledges (at this point in its advocacy campaign, anyway) that a US citizen might be lawfully targeted – not to put too fine a point on it, and a note, per Orin’s earlier post, to judicial clerks – without the permission of Proconsul Kennedy, provided that he be on an “actual” battlefield as the ACLU legally defines it in its own way.  That being the ACLU’s view for the nonce, then the geographical distinction is crucial as a matter of law.  Within it, the US citizen can be treated as a combatant like any other; outside of it, then in the ACLU and CCR’s view, constitutional rights follow the citizen.

It is important to understand, then, that the ACLU and CCR’s advocacy position is not limited at all to US citizens – it is to impede targeted killing by requiring, among other things, the permission of a Federal judge at a minimum, including for non-US citizens.  Since it seems, as a matter of political advocacy at least today, a bit of a stretch even for the ACLU or CCR to try and argue that an American shooting at US soldiers in Afghanistan is owed a judicial hearing, the crucial premise is to separate out those “active” war zones as a matter of law from places where constitutional due process meted out by a federal judge obtains.

The citizenship issue is best understood, then, as a stalking horse for a larger advocacy strategy in which, in the case of US citizens, constitutional rights follow US citizens even beyond territorial borders – a questionable proposition, in my view, if that is supposed to mean “all” or even “all important” ones.  (There are many reasons why territory matters in the existence of constitutional rights – the actual exercise of actual police powers over the national territory, versus Yemen or Somalia, for one thing; it is partly, but not just a formal concept about sovereign territory.  The Post editorial dealt with that correctly, in my view.)  And in the case of non-citizens, outside of what the ACLU defines as the legal armed conflict zone, full human rights law applies on the ACLU-CCR, to render the targeted killing an extrajudicial execution; likewise, in my view, a questionable proposition.  But in the discussion of the current ACLU lawsuit, I think the fundamental premise, and the most dubious one as a matter of law – geographical limits on the legal state of armed conflict – has been somewhat passed over as people have argued instead about citizenship.

Third observation – why the assumption that in everything, including crucial issues of national security abroad, there is always a role for the Federal judiciary?  The Washington Post editorial emphasized, correctly, in my view that indeed a US citizen was deserving of greater scrutiny in deciding whether or not to target; I deliberately use “scrutiny” as a non-legal term rather than “due process.”  The Post was seemingly careful not to suggest that this scrutiny should be that of a judicial process or Federal judge.  Rather, the Post quite correctly, to my mind, emphasized that this consideration should be built into the intelligence oversight process – some kind of mechanism to ensure that the fact of citizenship has been acknowledged and a heightened evaluation made.

The WP says that the bi-partisan intelligence committees should be informed – a matter with which I could not agree more, on this as well as other matters involving Congressional oversight of the intelligence community.  But there is a special salience here.  Because in these targeted killings and other intelligence actions, officials tasked to carry out these missions need to have assurance that they will not be scapegoated afterwards.  They do not have it now.  A crucial political mechanism is to ensure that the intelligence committees have been fully and completely informed – so that there can be no later deniability as to what Congressional leaders were informed in secret.

I would write that as an amendment – perhaps; I could also be persuaded putting anything in writing is merely an invitation to judicial intervention – into USC 50.  This would be partly to make clear both that the process is vested in the political branches as a matter of national security, but that in the case of Americans abroad and possibility the subject of forcible actions by the actors in the “intelligence community,” the President shall, in the lawful exercise of his discretion, take into account that the person is American.  But it would also be to say explicitly that nothing in the exercise of that discretion confers any substantive rights on any individual and that the judiciary has no power to review such exercise of Presidential discretion.

As various people have pointed out, the current ACLU lawsuit is not likely to go anywhere.  From the advocacy point of view, that is not really the point.  It is instead to keep create as much legal uncertainty as possible by raising the possibility that at some point down the road, perhaps some Federal judge will decide to entertain these possibilities, and hold some CIA official liable for something done years before – does any, these days, think that we are in a period of settled institutional views on liability?  If anyone thinks that even a small amount of legal uncertainty for individual officers involved does not have consequences, they should think again.  Leveraged legal uncertainty affects behavior.

Moreover, the US government, under any administration, is perennially unable to see the larger advocacy campaign – this as well as other ones.  They are textbook examples, whether one agrees with the cause or not, of The Logic of Collective Action; they look to the ten year framework, and they understand something that seems to elude too many law and economics scholars, viz., the framing power of legitimacy.  Hence the current formulation of the ACLU lawsuit – execution without trial of an American citizen abroad by his government.  One might think that “execution without trial” tendentiously presumes the conclusion, but it has been faithfully picked up and repeated by numerous journalists and commenters as though it were the obvious starting point rather than a tendentious conclusion.

When I talk with government lawyers about this public advocacy issue, however, their response tends to be … but Harold Koh already addressed this in his speech!  It’s been settled, already!  But if you are engaged in an advocacy campaign for the long run, Koh merely gave momentarily the wrong answer, and the task is to endlessly reframe until everyone has forgotten what he said and what’s left is, “execution without trial.”

Finally, the long march of advocacy groups through the institutions puts a greater importance on that least-impressive branch of government, the US Congress.  It needs to get involved – to take up its responsibilities as one of the political branches to set the most basic terms of national security.

But for a sharply contrary view to all of this – a view that, when contrasted with this or with Harold Koh’s views, shows just how much these basic conceptions of national security are today ships passing in the night – read Kevin’s (several) posts at OJ as well as Ben’s comments at Lawfare to which Kevin is partly offering a reply.

John Bellinger, former legal adviser to the State Department, reflects on the meaning of the Geneva Conventions today, in a post at Foreign Policy.

Today, 12 August, is the 61st anniversary of the signing of the Geneva Conventions of 1949, the international treaties designed to protect soldiers and civilians during armed conflicts.  The treaties became the focus of international attention in 2002 when the Bush administration controversially concluded that al Qaeda and the Taliban were not entitled to their protections. President Obama has reaffirmed America’s “commitment” to the Geneva Conventions but has not been specific about how the Conventions apply to al Qaeda and Taliban detainees. To re-assert U.S. leadership with respect to the laws of war, the Obama administration should announce that the United States accepts specific provisions of the Conventions and engage other countries to develop new rules where the Geneva Conventions do not apply.

Adam Serwer has a post up flagging a new suit by the ACLU and the Center for Constitutional Rights (CCR) against the Treasury Department’s Office of Foreign Assets Control (OFAC) over funds expended over the question of whether the Obama administration can designate and then target Al-Awlaki as a terrorist hiding out presumably in Yemen.  Adam tried to contact me to discuss it, but despite this post, I am really, truly out of touch.  In and out of the mountains, about to drive across the desert, and an iffy internet connection.  However, without having read anything at all besides Adam’s post, this is an important lawsuit.  I, as I have remarked various times, see no problem with the US government targeting Al-Awlaki, US citizen or not.  I don’t have a problem with the refusal of OFAC to issue the required license for the expenditure of funds on someone the US government has designated as a terrorist under existing US law.  However, those are separate legal questions, and there are others besides, not least the recent Supreme Court decision approving, if my sun and altitude-addled recollection is correct – and it might not be – something pretty much like what OFAC just did.  But I leave it to everyone else to sort out; I just wanted to flag it to everyone’s attention, and kudos to Adam for being on top of it.

Although officially offline and on vacation, I thought I would share one conversation with one of the rangers here in the national park. She remarked that the ranger services – national parks, national forest, etc. – had been watching with great interest the growth of unmanned aerial vehicles (UAVs) in civilian use. So far this includes things like crop dusting and surveillance. Because the air bases that command some of the UAVs are located in Nevada, relatively nearby (in the Empty Quarter, that might mean 300 miles of desert driving, of course), there is a lot of awareness of UAVs and their potential – University of Nevada, Las Vegas has just begun a program to graduate UAV controllers, for example.

When people talk about surveillance UAVs, they are typically thinking about border patrol, but here, the park services are thinking about fire patrols – an immensely expensive task from aircraft now, because of the vast areas to be surveyed in real time – but worth it because the faster the fire is spotted, the better the chance of containing it before it spreads. LIkewise, search and rescue for lost and injured back country hikers. That one is somewhat ahead of existing technology, for what the park services would ideally like, because flying in the steep valleys and canyons is difficult and hazardous now, but UAV technology is not sufficiently up to speed to take over those tasks. But it will happen soon, as smaller UAVs that are more like large birds can be deployed in difficult, deep, or narrow spaces. Likewise, as the sensor technology gets better, cheaper, and more available, it will be easier to find a single lost hiker using not just things like infrared signatures, but sensor arrays that are … well, if they exist, they are still only available to the military.

Point being that UAVs are going to spread rapidly and widely across a huge array of tasks and functions currently carried out by manned aircraft. It will happen because UAVs will be so much cheaper, efficient, and in many functional aspects superior to using people in airplanes. The impetus will rapidly turn from being military, as it still is now, to civilian. Everybody, everywhere in the world will shift that direction.

I raise this because there is a meme that still circulates with some velocity in the international law community, journalists, and others, that the US is risking setting off some kind of UAV arms race by its increasing roboticization of conflict – not just UAVs, but ground vehicles, and so on. I don’t think that’s right; the meme fundamentally misunderstands the technology and its application. Rather, UAVs are going to spread across a very wide range of aviation in any case, in which military uses will just be one of them. The same technology, cost, safety, efficiency, and so on, drivers that push for fire surveillance in the Sierra Nevada will be exactly the same ones that drive the military to use the technology. One can call it an arms race, I suppose, but only if one imagines that it is all about military use, otherwise it is a misleading way of thinking about the technology.

A better way to think about this is to go back to what make robots robots. In general, there are three conceptual pieces: A locomotion function or means of gross movement or action in the world; computing and central processing power to be able to analyze; and sensors to bring in streams of data which, being analyzed, result in some form of gross mechanical action. (In the case of US military UAVs, we can add an additional piece that brings them into an intersection loosely with ‘cyber’ – the communications net that allows them to be piloted over Afghanistan from the US.) Focusing on the UAV’s gross locomotion part, the flying part, and saying that it will lead to an arms race in which everyone will want one and arm it with a missile misses the point. There is no arms race about that – the technology for flying remotely has been around for decades; anyone who wants to build one can do so at a hobby shop. Putting a missile on it is child’s play, literally – presumably no one would be so politically incorrect as to propose building a Predator with a missile as the next high school robotics competition for high school teams, but apart from political sensitivities aside, one reason is that it’s just too darn easy. Flying is easy; making a machine that walks up stairs is hard.

Everyone will have UAVs because everyone will want them for so many, many things, mostly unrelated to military or police missions. Any government that wants to arm one with a missile will have no difficulty doing so. The real technology issues are not with flying, or with weaponization – or even with computing power. That’s all off the hobby kit shelf. No, the real technology issues arise with sensors. One robotics scientist in Silicon Valley told me last year that it was largely unrecognized, but the real advances in technology of the past decade had not been in computers as such, but in sensors and controllers, ranging from new ways and kinds of bringing data streams online to direct neurological, direct brain control of robotic limbs for amputees, and so on.

But now, note the issue. Some of this technology is classified for military R&D; other parts are not. The importance of robots outside of the UAV context are immense in large part because the Baby Boom generation does not have sufficient children to see us off to our reward; we are going to slide into dementia and be cared for and comforted by cuddly robotic dolls that we will think are human, to judge by where things are going in Japan. In the US, we are not so aware of this, yet, although it is striking that the Times and the WSJ have both moved on in their robotics coverage from targeted killing via UAVs to much more friendly news stories about Alzheimer’s patients in Japan being soothed by robot plush dolphins. Dolphins that will be smart enough to monitor medical conditions and call 911 if needed, to take obvious examples, or monitor whether a patient has taken the meds, or any number of things. What lies behind this is sensor technologies.

In an armed conflict context, however, it is questionable how many of the fighting forces in the world, state or non-state, will feel any great obligation to minimize collateral damage or attempt to more and more affirmatively id a target before striking. If you don’t feel that obligation – I would estimate that the countries involved will be the US and Israel, and the rest of NATO only insofar as it ever intends to do any more fighting, but in any case, they will simply acquire US technology. China will likely do so, because it would at least want every capability, and because it can most likely steal the technology and reverse engineer any missing parts. But either sensor technology will spread across civilian uses, such as elder care robots, so as to make the concept of an ‘arms race’ moot, or else the number of countries that will be “racing” to have such technologies will be almost entirely limited to countries that (a) fight and (b) care about the rules. That makes the list frankly pretty short. It is possible that India might join that list, along with Taiwan, South Korea, and a handful of others in Asia. But there will not be an “arms race” around sensors, because they are useful primarily for reasons related to more discriminating targeting, and the militaries in the world interested in that is not a long list.

Will there be an evolution of arms around UAVs, then? Yes, but not likely along those parameters. The likely arms race is along a quite different one. Predators are slow and noisy for targeted killing; it will not take long before some party – Iran – begins doing what the US did via the CIA in Afghanistan against the Soviets, and supplies rudimentary surface to air missiles to attack the drones. The arms race will get underway in the classic evolution of protecting air dominance. The Predator, for example, might launch not a missile, but instead a still smaller drone with a single-person weapon, specifically designed for up close use. That will be a function not of flying technology or weapons technology, however, but, once again, sensors. But an arms race over air superiority is not one that has the implications for the supposed dangerous spread of this new military technology – introducing dangerous new dynamics between India and Pakistan, for example – that numbers of commentators seem (still) to imagine.

I am returning to the solitude, which is to say, the off-lineness of the mountains.

Julian Barnes has a good story in today’s Wall Street Journal on the expanding and deepening boots on the ground role of US special operations forces in the Pakistan border region.  It is well sourced and reported, and overall points to a deeper cooperation with the Pakistan military.  I wanted to flag a couple of things.

First, the special ops units are going on aid missions, and as the article notes, they sometimes do so in civilian dress:

The Special Operations teams join the aid missions only when commanders determine there is relatively little security risk, a senior U.S. military official said, in an effort to avoid direct engagement that would call attention to U.S. participation.  The U.S. troops are allowed to defend themselves and return fire if attacked. But the official emphasized the joint missions aren’t supposed to be combat operations, and the Americans often participate in civilian garb.

The rules for when uniforms are required or not, and when non-standard uniforms are permitted, are more complicated and context dependent than many realize.  The dean of the Department of Defense laws of war studies, a friend and adjunct professor at my law school, Hays Parks, has written several articles addressing the technicalities of uniforms, but the bottom line is that the rule is not that servicepeople always have to perform their duties in standard military uniforms.  Special forces personnel operating with Northern Alliance groups early in the Afghan conflict, for example, dressed like the Northern Alliance groups – there was no obligation to call attention to oneself through one’s uniform as specifically US military.

The on the ground effort signals a greater emphasis on counterinsurgency by the Pakistani army itself, as it has gradually come to see itself in a war inside Pakistan against its own Taliban enemies, and not simply as a staging area for the Afghan fighting.  As Adam Entous of Reuter’s noted in an excellent article a few weeks ago, this is a shift for the Pakistan military and for the US as well.  Drone strikes, for example, are occurring in Pakistan no longer as simply part of the US counterterrorism strategy of seeking to strike at terrorists in their safe havens, but as part of regular combat.  It is a distinct strategic role in which the US is supplying an air weapon for the Pakistani army, and, as this article suggests, money and equipment for counterinsurgency as well.

During the past two years, Pakistan has stepped up military operations against the militant groups that operate in the tribal areas. Although Washington has praised the Pakistani offensives, Pentagon officials have said Pakistan’s military needs help winning support among tribal elders. If successful, the joint missions and projects may help the Pakistani military retain control of areas in South Waziristan, the Swat valley and other border regions they have cleared of militants.

The use of drones, then, needs to be understood in two different strategic contexts – an air weapon in an overt war, alongside the high value, intelligence driven targeting of terrorist leadership that has mostly been the center of attention.  I’ve been having conversations with various journalists in the past couple of weeks; I am struck by their perception – accurate – that drone strikes have been on the increase in Pakistan, but their unawareness of the differing roles, combat counterinsurgency versus counterterrorism that in part accounts for the rise in drone use.  (In another post, I’ll take up the questions of counterinsurgency strategy; I have a somewhat different perspective, having seen it for many years through the lens of a human rights monitor seeing how it sometimes worked, and sometimes didn’t, in conflicts in which the US was not, or was only peripherally, involved.  Wars in Latin America, and other places.)

… and pray for their safety and honor their sacrifices, the chief foreign affairs correspondent for ABC news, Martha Raddatz, delivers herself of the following opinion concerning American fighting forces and drone warfare:

Traditionally, when a nation went to war, it had to invest its blood and treasure, but today’s joystick-wielding drone pilots can launch a missile strike from here at home, then hop in the minivan to meet the wife and kids for dinner. War couldn’t get any more impersonal.

And this is bad, why?  Because it is striking, all on its own, that Ms. Raddatz thinks this state of affairs obviously undesirable in some way; the disapproval stands out, along with the apparent sense that it is so obvious that one need not even explicitly state why it is bad.  But two views stand out from Ms. Raddatz’ account.  First, American forces wielding drones have a playstation mentality when it comes to war.  I last raised this at a conference a few days ago of military lawyers; the reaction was a collective sigh and roll of the eyes.   Second, through the use of drones, the United States and its fighting men and women invest insufficient  amounts of their own blood (why else phrase it “had to invest”?).

This comes in a special “big ideas” section of the July-August 2010 Atlantic.  Actually, there’s nothing big or special about it.  Ms. Raddatz is recycling conventional wisdom that got started back with some bits of Peter Singer’s Wired for War, and then elevated into a shared journalistic meme with Jane Mayer’s New Yorker piece last fall.  Ms. Raddatz does not seem to have received the memo, however, that the conventional wisdom among journalists is that even if you think that drones mean that US forces are not sufficiently engaged with their own blood, it is impolitic to mention it.

After I and a number of others began to call journalists and advocates and activists out on the question of whether they really, truly wanted to go on the record with what they were saying – ‘drones reduce the personal risks to US forces below the “efficient” level that would disincentivize “inappropriate” recourse to violence’, as a too-clever law student at one of our elite law schools put it to me last year – well, there was a sudden backpedaling.  No, no, you misunderstand us (this from the ACLU), we always respect the professionalism, &tc., &tc., of US servicemen and women (although the CIA, another story; it is the Designated War Criminal, so far as I can read where the international advocacy community would ideally like to carry this over the next few years, once the Obama administration is safely departed from office).

Ms. Raddatz’ “big idea” is at least six months behind the times.  Perhaps her bosses at ABC will encourage her to do a walk-back.  But it is helpful to have the unfiltered biases of journalists at least occasionally on public display so that we all know what they are, particularly when it comes to the lives of American servicemen and women, as viewed by our leading foreign correspondents.

My view is … thank you to all American forces for your sacrifices and your heroism, this 4th of July and the rest of the year.  Any time the United States can find technology that will make your task safer – particularly while reducing civilian collateral damage over what war traditionally has meant (e.g., a rolling artillery barrage by the Pakistani army) – then, well, faster please.

Harvard professors Gabriella Blum and Philip Heymann have a new, short article online at the Harvard National Security Law Journal (which, by the way, is doing many interesting things), Law and Policy of Targeted Killing (June 27, 2010).  (A version of it will appear as a chapter in their forthcoming book on terrorism and counterterrorism.)  It is a fine essay, not over-long, and well worth reading if you at all take an interest in these topics.  Below the fold is a little bit from the introduction. Continue reading ‘Gabriella Blum and Philip Heymann on Targeted Killing’ »

The Atlantic is running an excerpt from Sebastian Mallaby’s new book, More Money Than God: Hedge Funds and the Making of  New Elite, which is out on June 14.  The excerpt covers the famous moment when George Soros broke the pound in 1992.  (It was then that I went to work for him, as general counsel to his charities, but mostly I remember people running in and out of rooms bringing him faxes while he was holding simultaneous meetings on assisting Eastern Europe.)  Mallaby is a terrific writer, and if you have any interest at all in the topic – and Mallaby is outstanding at bringing together the matters of finance and money with politics and power – you are likely to be interested in this book.  It is definitely on my summer reading list, although I am desperately hoping for a Kindle version, as I will be traveling and can’t haul around a lot of stuff.

On hedge funds and private equity in a different direction, I received an examination copy of a new textbook, An Introduction to Investment Banks, Hedge Funds, and Private Equity: The New Paradigm, by David P. Stowell.  It is excellent – clear, informative, well-written.  It is aimed at an undergraduate course audience, perhaps in the upper classes, but would also be perfectly useable in business school as an intro text, as well as in law school as an introductory class in these topics, if the professor were able to supplement it with legal materials.  (In fact, that might make an easy way to create something that does not now seem to exist for law school – a private equity-hedge fund text that covers both the business and legal aspects.  A fix for that might be to use this book, with a detailed supplement with examples and legal documents to illustrate the business descriptions in the text.)

I decided to stop teaching my introductory law school course on venture capital, private equity, and hedge funds, and instead return to the basic Business Associations class in the fall, after 7 or 8 years away from it.  I did so for two reasons – one, I find the whole private equity-hedge funds field too unsettled at the moment to teach with a lot of confidence that what I say now will reflect the industry in even just a couple of years, and I also think that at this moment, it has become so much just part of the deal industry that I can safely leave most of it to the M&A class, at least for now.  Second, though, I also wanted to return to BA, because my interests in business and finance law are shifting back towards the deeply embedded concepts of trust, agency, fiduciary duty, duty of care and duty of loyalty, and away from my long time focus on financial instruments and derivatives.

The latter goes to my scholarly interest in what I have called the “moral psychology of finance,” and somtimes called “virtue economics” – not in the sense of distributional justice in the economy, but instead the Aristotlean sense of “virtue ethics” and its intersection among practical reason, attitudes and rationality, and affective behavior and rational choice.  I am slowly re-reading Theory of Moral Sentiments, alongside Ian Simpson Ross’s exemplary Life of Adam Smith, a book I read with insufficient attention when it first appeared, but which I am re-reading with a great deal of care.

And finally, in this same broad area, I am also re-reading with intense care and considerable respect the papers in Ruth Chang’s 1997 volume, Incommensurability, Incomparability, and Practical Reason – with particular attention to Chang’s excellent introductory paper, and then Elizabeth Anderson’s contribution on practical reason (I’ll let the library locate me her later 2001 book, Making Comparisons Count, at over $100).  Partly this has to do with how this notion of virtue ethics intersects with practical reason – with every passing week, especially as I acquire and mostly skim an ever growing pile of books on the roots and solutions to the financial crisis and regulation, I am convinced that there is a lot more work to be done on the philosophy of economics, the philosophy of value and even the philosophy of valuation.  If I were advising a young person where to make a mark today, that would be a good starting point – where philosophy, economics, and intellectual history come together on these topics.

But, interestingly, the whole question of incommensurability and incomparability is at the center of a new paper I am completing on the vexed issue of proportionality in the laws of war.  Reading the examples in Chang’s book, I am much struck that the question of incommensurability and proportionality are far more real and unavoidable, as far as I can tell, in the ethics of war, and the classic calculation in the ethics of war between the demands of military necessity, on the one hand, and civilian harm, on the other.

As Professor Philip Alston’s report as special rapporteur to the UN Human Rights Council on targeted killings, drones, CIA and military, and related issues is released today, I’ve been asked by numerous people to comment on it.  I’ve read it once, but need to finish re-reading it before I’m ready to say anything that goes to the inside of the report.  However, in preparation for the report’s release, I have posted to SSRN my testimony in the second round of House subcommittee hearings, “Drones II,” held on April 28, 2010 – an annotated version with various explanatory footnotes added.  The best way to read this testimony is alongside the other written witness submissions, as taken together they offer a good compendium of the extant expert views in the US on how to see drones and the CIA – and the CIA and its use of force is, at the end of the day, the biggest issue here.  Drone technology is best understood as a stalking horse for the question of the CIA’s use of force.  I have a rambling blog post at Opinio Juris on the background to this; it is somewhat inside international law professor baseball, however – also, the links and tags point to a long,  long series of back and forth posts at that international law blog site that fill in much background to the issue.  SSRN abstract below the fold.

Continue reading ‘My House Testimony in “Drones II”’ »

Charlie Savage reports in the NYT today that Philip Alston, the UN special rapporteur on extrajudicial execution, will be coming out with a new report next week calling on the US government to withdraw the CIA from conducting drone strikes and giving it over to the US military instead.  The article has an extended and very interesting discussion of various debates inside the US government among lawyers over the right way to see CIA participation, in relation to lawful combatant status, unprivileged belligerency, and crimes defined in the military commissions.

It’s a fascinating discussion on the lawyers’ debate inside the administration.  But let me reach broader than that frame, and offer a few comments on the larger intersection of ways in which one might, and ought to, see CIA drone strikes.  This goes indirectly to Charlie Savage’s exceedingly interesting NYT piece.

There are two ways of seeing a call that drone strikes be turned over to the US military, rather than conducted by the CIA.  One is fundamentally grounded in the binary that all uses of force must be either law enforcement or else armed conflict – and if so, there is no room for the CIA to be conducting these strikes.  In that case case, the call to take the CIA out of it is a way of reasserting the basic binary.  This is problematic from the US standpoint, if it is a way of reasserting this fundamental binary, since the Legal Adviser’s ASIL speech specifically preserves an independent ground of self-defense that is not a matter of armed conflict.  If CIA participation is unlawful because the binary holds, then the US has simply rejected the underlying premise – indeed, said that it has never accepted it, going back clear to the 1980s and beyond.

The other way to see a call to take the CIA out of the activity is on the ground that because this is an armed conflict, uses of force must be undertaken by lawful participants, and the CIA, as a civilian agency, is not a lawful participant.  Insofar as this is offered as something that is not driven by the fundamental binary above, then it is essentially a claim about the CIA not meeting the requirements lawfully to engage in hostilities – some version of the claim that the war with Al Qaeda is an armed conflict, and the CIA are not privileged combatants.  This is a technically more complicated claim in the rules of war than much of the public discussion has treated it.  Much of the public discussion seems to revolve around the idea that if you are a civilian, you are not allowed to take part in hostilities; the legal point, rather, is that there are numerous categories of civilians that have varying roles in direct participation in hostilities and the point is not to say that their participation is unlawful, it is that – if they were facing a lawful foe – they are themselves lawful targets.  Whether they wear uniforms or not is a question of whether the circumstances in which they wear uniforms, or non-standard uniforms (e.g., special forces in Afghanistan), etc., is a question of whether they fail to distinguish themselves from the non-combatants.  Insofar as they do this from Langely in some cubicle, that does not really present a problem.

As to the assertion that they have made themselves lawful targets – that would be true if engaged with a foe that could lawfully target anything.  In the case of a terrorist group – Al Qaeda, the IRA, ETA, etc., the automatic assumption that military lawyers sometimes make, that jus ad bellum and jus in bello are independent, is beside the point; these groups have no reciprocal right to target anything, irrespective of whether, in a lawful conflict, something or someone would be a target.  It is not the case that by flying a drone from Langley, the CIA operator is now a lawful target – he or shewould be if flying it in a conflict with, oh, North Korea, but not Al Qaeda.  Al Qaeda has no belligerency rights jus ad bellum, just as it has no combatant privilege jus in bello.  To suggest that the CIA at Langley has put itself into an “equivalent” position is not correct.  If the CIA at Langley were fighting a lawful actor, its participants would be lawful targets – although not, merely in virtue of not wearing uniforms inside Langley, “unlawful combatants.” But not as regards Al Qaeda. Continue reading ‘Drone Warfare, the CIA, and Charlie Savage’s NYT Article’ »

The New York Times, in a story by national security correspondent Mark Mazzetti today (Tuesday, May 25, 2010), reveals the contents of a September 2009 secret directive signed by General Petraeus ordering “broad expansion of clandestine military activity in an effort to disrupt militant groups or counter threats in Iran, Saudi Arabia, Somalia and other countries in the region.”  (The story also says it holds back “sensitive” details, which raises a different set of issues about the NYT making determinations about what is sensitive and what is not, but leave that for a different discussion.) (PS. If co-blogger Stewart Baker had any thoughts about this whole article and the policy issues, I’d certainly be interested to hear them.)

The document does not authorize any offensive use of force activities; the purposes are apparently intelligence-gathering and relationship building, in friendly and hostile countries.   Contingency plans related to thwarting expansion of terrorist networks as safe havens in AfPak and, presumably, Yemen are disrupted to other lightly governed or hostile places such as Somalia or Iran are important; likewise contingency plans around Iran nuclear weapons acquisition.   Of particular interest, beyond the news report itself, is the article’s discussion of the relationship between “clandestine” military activities and “covert” CIA actions (the statutory definition of “covert” for purposes of the intelligence community is found at USC Title 50, 413(b)(e)).  According to the article:

The order … calls for clandestine activities that “cannot or will not be accomplished” by conventional military operations or “interagency activities,” a reference to American spy agencies …  Unlike covert actions undertaken by the C.I.A., such clandestine activity does not require the president’s approval or regular reports to Congress, although Pentagon officials have said that any significant ventures are cleared through the National Security Council. Special Operations troops have already been sent into a number of countries to carry out reconnaissance missions, including operations to gather intelligence about airstrips and bridges.

One of the assumptions many people seem to have is that the military is more accountable than the CIA in such activities.  I’m not suggesting any problem with the activities described in this article by the military – far from it – but as the article says, these clandestine activities do not require the regular covert action accountability mechanisms required of the CIA as a matter of law, although NSC is involved in anything significant.

However, as these activities get closer to, well, “spying” in the traditional sense, then the line between clandestine and covert risks becoming blurred.  Besides the statutory definition of covert, the term also refers to the fact that US military personnel, even though acting clandestinely, will be acknowledged by the US if taken prisoner and it will demand Geneva III treatment for them.  But the article says that many in the military “are also concerned that as American troops assume roles far from traditional combat, they would be at risk of being treated as spies if captured and denied the Geneva Convention protections afforded military detainees.”

CIA civilian operatives do not have that assurance of being avowed, and of course in many circumstances – though not all, because covert refers to many things beyond the use of force, including information and disinformation activities, things that are not necessarily illegal under a country’s local law – their activities will be illegal espionage, and in other more extreme cases murder under local law.  This is the whole issue of NOC.  (BTW, there is a fun and useful FAQs page at the CIA’s website that covers a number of questions both policy and practical, including internship opportunities at the CIA.)  Here is what the CIA itself tells the public about covert action on its web page (emphasis added):

7. Who decides when CIA should participate in covert actions, and why?

Only the president can direct the CIA to undertake a covert action. Such actions usually are recommended by the National Security Council (NSC). Covert actions are considered when the NSC judges that US foreign policy objectives may not be fully realized by normal diplomatic means and when military action is deemed to be too extreme an option. Therefore, the Agency may be directed to conduct a special activity abroad in support of foreign policy where the role of the US government is neither apparent nor publicly acknowledged. Once tasked, the intelligence oversight committees of the Congress must be notified.

These activities are not illegal under US law, of course, provided that the requirements of the different services – the military or the civilian agencies – are followed, including required accountability and oversight.  Nor are they illegal, in my view, under international law; state practice by a wide variety of states has sanctioned espionage, up to and including uses of force illegal under the local law of the sovereign, so widely and for so long that the rule would have to be something like, “liable under local sovereign law but not contrary to international law,” including uses of force if they are correctly described as “self-defense.”

However, as a matter of US policy, the divisions between the various services matter over the long run, and so there are important questions as to the proper division of roles.  Many people in the international law community – believing that all lawful use of force divide into law enforcement and armed conflict – naturally believe that as domestic law and policy, the CIA should not have a role in using force.  As I remarked in a second round of Congressional hearings a few weeks ago on drone warfare (I’ll post this soon to SSRN), states have not generally found that the best solution to real-world problems.  States want, and in my view of international law, have plainly preserved, the ability to use covert force and preserve deniability and indeed in an extreme situation disavow the civilian agent.  It appears to many states an important security capability, including the United States.

On another hand, there are real questions as to whether – as a matter of policy, not law – the CIA is the right agency to conduct what increasingly looks to amount to a parallel conventional war using drones in Pakistan, not in a pure counterterrorism strategy, but really in support of the conventional war by Pakistan against the Pakistan Taliban.  As a matter of internal US division of labor, there are policy (again, not legal) questions as to whether the CIA should be engaged in overt conventional war, or something starting to approach that.  Yet the real world constraint – trumping, it would appear up to this point and probably for quite some time – is Pakistan’s desire to have a fig leaf of deniability as to a US military role.

Conversely, as the Mazzetti article signaled there are important questions as to whether it is a good idea to have the US military expanding further into clandestine, secret – covert, in the vernacular, not legal term-of-art, sense – operations.  As I said, in some important respects, civilian oversight and accountability is stronger regarding the CIA – although I believe that in any case, the rise of new technologies such as smaller and smaller drones that allow for still more discrete uses of force argue for a review and revamping of oversight and accountability.

In effect, Petraeus is seeking to outflank the transnational terrorist enemies by anticipating where they might go, what new groups with the same tendency of violent jihadist beliefs might arise in places outside of the places – Pakistan, Yemen, Saudi Arabia, Somalia, Iran, etc. – where they currently arise or find haven.  He wants to get there first, with knowledgeable people – for the long term and, presumably for the medium term, have intelligence capabilities with respect to Iran.  As several officials quoted in the article say, this does not raise a big problem with the intelligence agencies, given that there is plenty of work to go around.  But it does raise longer term policy issues about who should do what kinds of things.

The House Subcommittee on National Security and Foreign Affairs, chaired by Rep. John Tierney, held a second hearing (Wednesday, April 28, 2010), once again on the topic of drone warfare. The first, held back on March 23, was focused on the technology of UAVs; this follow-up hearing was specifically about targeted killing and drone warfare. All of the witnesses this time around were senior international law professors: Mary-Ellen O’Connell (Notre Dame), William Banks (Syracuse), David Glazier (Loyola Los Angeles), and KA.

(I’m traveling, so I’ll post the hearing information when I get home; the AP has a reasonably good summary (considering the difficulty of reporting on four law professors with quite different views politely agreeing and disagreeing with each other …!). The ACLU submitted a written statement (just downloaded but not yet read).)

We four professors represented a pretty good range of the available expert views, and in that regard particularly I think this was a useful hearing. In part, it sought to figure out what this debate meant following DOS Legal Adviser Harold Koh’s statement on drones at the ASIL meeting on March 25. Having been a sharp critic of the administration, or anyway its senior lawyers, including in the first drone hearing, for not stepping up to the plate on this topic, I applaud both the fact of the Legal Adviser’s public statement as well as the substance of his statement.

The pivotal issue – not surprisingly, for those following these debates – is the role of the CIA, whether it takes a role at all and, in particular, where it takes a role. The positions presented ranged from:

• Professor O’Connell’s well-known view that the participation of the CIA is and always is an international crime;
• Professor Glazier’s position that the targets who fit within the AUMF are targetable as part of an armed conflict and that the conflict goes where they go;
• Professor Banks’ position that the participation of the CIA is lawful under both domestic and international law, but that the law in each instance needs to be updated and brought to fit contemporary circumstances; and
• my own view, closest to Professor Banks’, that the CIA participation is lawful, but that there is a separation of the legal rationales and bases, depending upon whether it is a matter of armed conflict or the separate ground of self-defense.

Chairman Tierney did an excellent job of disentangling the highly entangled and conflicting positions among the witnesses. Not easy, because the disagreements are very sharp in some areas, less so in others.

(For my own part, I’m going to have to work on delivering a very clear message about my own views. Like many professors, including our President, I have a tendency to bury the lede in a bunch of hypothetical questions. I framed a series of questions about the role of the CIA – not because I think that its participation is unlawful, but because I thought it would be useful to frame the positions among which I was asserting one. When I read a number of the news stories afterwards, I discovered I had been cited for the propositions in the hypotheticals, not for my actual view that the CIA’s participation is, yes, lawful. My bad – there are reasons why I would never be a good litigator.)

The most striking take-away for me from the hearing was just how much the position of the professional international law community, as ably represented by Professor O’Connell, starts from fundamentally different premises than that of the US government, of any administration, at any time. In this particular instance, Professor Banks and I were, in various ways, channeling the administration – or, better said, the way in which the US government has long approached these questions as a matter of pragmatic law.

These two whole approaches to international law – that represented by Professor O’Connell, and that represented by me, and by Professor Banks and, in this regard, Professor Glazier – the approaches to international, and not just the substantive positions derived from them, are really like ships passing in the night. I tried to say this at the end of my comments: Professor O’Connell and I were arguing past each other, ships passing in the night. But the consequences in the real world are not ships passing; eventually they collide and one or the other prevails.  They can’t really meld into some mixed paradigm; the underlying assumptions are too different.

The problem?  If you talk about international crimes being committed by the CIA, each and every time it carries out a strike, those are words with consequences. It is hard to talk about merely “correcting” state practices to conform to international law in some general sense of the government of the United States, when the paradigm is that there are individuals who under principles of international criminal law, should not be undertaking a course correction by the administration. If that’s what you mean – and, please to observe, I don’t think this is the case at all – but if that’s what you mean, well, It should be indictment, arrest, and prosecution. For murder and extrajudicial execution and assassination. That’s what you mean if you invoke about international crimes; the whole paradigm is designed, by its nature, to reach to individuals and not simply “sides” in international law and politics.

Just to be crystal clear this time, I don’t think these CIA actions are international or domestic crimes. But the view of the administration, which I think generally legally correct, and that of its critics such as Professor O’Connell, really can’t be reconciled. And if you think it is a matter of international crimes (as, I stress, I don’t), then it doesn’t go away even if the Obama administration decided tomorrow to change course. It has undertaken hundreds of these strikes now, over a series of years; give it a couple of years more until it’s no longer President Obama, and then call it “crimes against humanity.”  After all, why not, once the political costs of attacking Democrats, with the genuine intent of finding criminal liability, is gone?

If the stakes are raised, as is currently underway by the soft-law community, to the level of serious allegations of criminality, then the Obama administration now finds itself at the beginning of the process that the Bush administration found itself in regarding detention, interrogation, and rendition. The ACLU is like a dog with a bone; following the relentless logic of collective action coordination failures, it will remain relentlessly focused, gnawing away, and those it seeks to play will be diverted and disorganized in their responses. Death by a thousand paper cuts, I think I wrote in the Weekly Standard. I am as ever stunned by the ability of government officials to think that the advocacy soft law community does not have the ability to set the agenda.

(Side note:  My general sense of the politics associated with this, then? Nasty. Not as nasty as I thought before Dean Koh’s speech, so perhaps I am simply inclined to see nastiness, but still … The table is being set now by the NGOs to turn the agenda into a genuinely international criminal one against individual CIA officials – once a Republican administration is in office. I find it hard to resist the sense that if you are, say, the ACLU or the human rights groups, this is win-win politically. The joys of public choice theory and defection game theory.

The game played by human rights organizations of what I have sometimes called “serial absolutism” is a special case in game theory of serially “moving the goalposts,” which in turn is a special case of serial insincere promising (these are the absolute, unshifting standards, we really, really promise this time!!), serial insincere promising about the procedural and constitutive rules of the game, followed by serial defection (whoops! it’s really crimes against humanity, now that the Republicans are in).  ’Moving the goalposts’ does not get enough attention in the iterated game theory literature, I think.  Unstable coalitions in domestic politics – leftwing Democrats aligned with various foreign and international constituencies, “gaming Spain,” as I’ve sometimes called it – prevent a unified American government from recognizing the pattern of repeat defection and trust-breaking and therefore refusing to take the promise seriously.

Thus, the advocacy groups start with the Obama administration, establishing their bona fides so no one can say that they weren’t even-handed, even though they know that it will only become real, a campaign that ripens into a real chase against individual lawyers, officers, and agents (probably starting with any easy-to-cut-out-from-the-herd military contractors), undertaken and underwritten by a concerted NGO campaign, ratcheting up to a crescendo a couple of years into the next Republican presidency. The only way to slow this down is by creating a policy and considered legal views in the Obama administration that can set a stable precedent for those administrations, Republican and Democrat, that follow.)

Director Panetta has been doing a remarkable job of push back in the press, and certainly with Congress, on the efficacy and focus of these strikes. (Of course, I regard Legal Adviser Koh’s statement as an outstanding beginning for the American government to state its long-term position on the law.) I suspect Panetta has convinced some important, and not otherwise friendly, reporters that the collateral damage is far closer to what the CIA says than what the NGOs say. But I’m not sure even he understands how much the ground is shifting even from the argument over collateral damage to a much more basic one – why does the CIA even engage in the use of force at all? Shouldn’t all uses of force be either military (in an armed conflict) or law enforcement?

Why does the CIA have any function of covert action? That question was plainly on the table in the House subcommittee hearing, and I thought there was a twinge of hesitation on the part of some lawmakers. I remarked – seemingly off topic but in fact at the center of things – the United States, like other leading states, has long believed that its national security and self-defense required a covert civilian service. We thought about ending it in the Church hearings but didn’t. We have had many opportunities to end it, but we’ve never taken them.

In my view, we are right to keep that ability. But there are plenty of people who think it a bad idea on both policy and legal grounds. (For that matter, in my experience, the Defense Department has many serious military people, both operational and legal, who think the use of force by the CIA is always a mistake and indeed illegal. I’ll discuss that view in another post.  Professor Glazier seemed to reflect this view in part, although I don’t want to speak for him on so fundamental a question.)

We are at one of those periodic moments, in other words, when the fundamental question of CIA covert use of force is on the table of public debate again. I hope that Director Panetta pays close attention to the tenor of the hearing last week and understands that among the multiple layers of issues – drones, drones beyond AfPak, the role of the CIA in an armed conflict, the role of the CIA in self-defense – the question of whether the CIA should ever use force is on the table.

The Washington Post has an editorial today praising State Department Legal Adviser Harold Koh’s March 25 statement defending the legality of drone warfare (part of a long speech on several international law topics).  The editorial specifically endorses the Legal Adviser’s invocation of self-defense as a separate ground for using force apart from armed conflict in a technical sense.  (Needless to say, I’m pleased by the editorial.)

… Mr. Koh, an unflinching critic of Bush administration anti-terrorism tactics during his years in academia, cited domestic and international law as foundations for the program. The United States is engaged in an “armed conflict” with al-Qaeda and its affiliates, Mr. Koh asserted, and “individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law.”

He rightly rejected the absurd notion that enemy targets must be provided “adequate process” before the strike occurs. “A state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force,” he concluded.

Mr. Koh’s reaffirmation of the right to self-defense — even outside the confines of an existing armed conflict — is particularly important. The Authorization for the Use of Military Force (AUMF) after Sept. 11, 2001, empowered the president to pursue those responsible for the attacks, including al-Qaeda and the Taliban. That authority may wane with time. But the right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.

I’ve noticed a number of posts and comments around the blogosphere on the spread of UAV technology.  Which indeed is happening; many states are developing and deploying UAVs of various kinds.  The WCL National Security Law Brief blog, for example, notes that India is now acquiring weaponized UAVs:

India is reportedly preparing to have “killer” unmanned aerial vehicles (UAVs) in response to possible threats from Pakistan and China. Until now India has denied the use of armed UAVs, but they did use UAVs that can detect incoming missile attacks or border incursions.

The importance of obtaining armed UAVs grew enormously after the recent attack on paramilitary forces in Chhattisgarh that killed 75 security personnel. Sources reveal that the Indian Air Force (IAF) has been in contact with Israeli arms suppliers in New Delhi recently. The IAF is looking to operate Israeli Harop armed UAVs from 2011 onwards, and other units of the armed forces will follow.

I’ve also read comments various places suggesting that increased use of drone technologies by the United States causes other countries to follow suit, or to develop or acquire similar technologies.  In some cases, the dangling implication is that if the US would not get involved in such technologies, others would not follow suit.

In some relatively rare cases of weapons technologies, the US refraining from undertaking the R&D, or stopping short of a deployable weapon, might induce others not to build the same weapon.  Perhaps the best example is the US stopping its development of blinding laser antipersonnel weapons in the 1990s; if others, particularly the Chinese, have developed them to a deployable weapon, I’m not aware of it.  The US stopped partly in relation to a developing international campaign, modeled on the landmines ban campaign, but mostly because of a strong sense of revulsion and pushback by US line officers.  Moreover, there was a strong sense that such a weapon (somewhat like chemical weapons) would be not deeply useful on a battlefield – but would be tremendously threatening as a pure terrorism weapon against civilians.  In any case, the technologies involved would be advanced for R&D, construction, maintenance, and deployment, at least for a while.

The situation is altogether different in the case of UAVs.  The biggest reason is that the flying-around part of UAVs – the avionics and control of a drone aircraft in flight – is not particularly high technology  at all.  It is in range of pretty much any functioning state military that flies anything at all.  The same for the weaponry, if all you’re looking to do is fire a missile, such as an anti-tank missile like the Hellfire.  It’s not high technology, it is well within the reach of pretty much any state military.  Iran?  Without thinking twice.  Burma?  Sure.  Zimbabwe?  If it really wanted to, probably.

So it doesn’t make any substantial difference whether or not the US deploys UAVs, not in relation to a decision by other states to deploy their own.  The US decision to use and deploy UAVs does not drive others’ decisions one way or the other.  They make that decision in nearly all cases – Iran perhaps being an exception in wanting to be able to show that they can use them in or over the Iraqi border – in relation to their particular security perceptions.  Many states have reasons to want to have UAVs, for surveillance as well as use of force.  It is not as a counter or defense to the US use of UAVs.

The real issue is not flying the plane or putting a missile on it.  The question is the sensor technology (and related communication links) – for two reasons.  One is the ability to identify the target; the other is to determine the level, acceptable or not, of collateral damage in relation to the target. That’s the technologically difficult part.  And yet it is not something important to very many of the militaries that might want to use UAVs, because not that many are going to be worried about the use of UAVs for discrete, targeted killing.  Not so discrete and not so targeted will be just fine – and that does not require super-advanced technology.   China might decide that it wants an advanced assassination platform that would depend on such sensors, and in any case be interested in investing in such technology for many reasons – but that is not going to describe Iran or very many other places that are capable of deploying and using weaponized UAVs.  Iran, for example, won’t have super advanced sensor technology (unless China sells it to them), but they will have UAVs.

(The attached weaponry follows the same pattern.  Most countries will find a Hellfire type missile just fine.  The US will continue to develop smaller weapons finally capable of a single person hit.  Few others will develop it, partly because they don’t care and partly because its effectiveness depends on advanced sensors that they are not likely to have.)

Robots are broadly defined by three characteristics – computation, sensor inputs, and gross movement.  Movement in the case of a weaponized robot includes both movement and the use of its weapon – meaning, flying the UAV and firing a weapon.  The first of those, flying the UAV, is available widely; primitive weapons are available widely as well, and so is the fundamental computational power.  Sensors are much, much more difficult – but only to the extent that a party cares about discretion in targeting.  But it is not the case that they are making these decisions on account of US decisions about UAVs; UAVs are useful for many other reasons for many other parties, all on their own.

Scott Shane’s report in this morning’s NYT on the Obama administration putting the radical cleric, but US citizen, Anwar al-Awlaki, on the kill or capture list has stirred a lot of discussion.  (Update: let me add Max Fisher’s Atlantic discussion as well.)  Scott Shane:

The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.

Mr. Awlaki, who was born in New Mexico and spent years in the United States as an imam, is in hiding in Yemen. He has been the focus of intense scrutiny since he was linked to Maj. Nidal Malik Hasan, the Army psychiatrist accused of killing 13 people at Fort Hood, Tex., in November, and then to Umar Farouk Abdulmutallab, the Nigerian man charged with trying to blow up a Detroit-bound airliner on Dec. 25.

American counterterrorism officials say Mr. Awlaki is an operative of Al Qaeda in the Arabian Peninsula, the affiliate of the terror network in Yemen and Saudi Arabia. They say they believe that he has become a recruiter for the terrorist network, feeding prospects into plots aimed at the United States and at Americans abroad, the officials said.

It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said. A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president.

But the director of national intelligence, Dennis C. Blair, told a House hearing in February that such a step was possible. “We take direct actions against terrorists in the intelligence community,” he said. “If we think that direct action will involve killing an American, we get specific permission to do that.” He did not name Mr. Awlaki as a target.

The step taken against Mr. Awlaki, which occurred earlier this year, is a vivid illustration of his rise to prominence in the constellation of terrorist leaders. But his popularity as a cleric, whose lectures on Islamic scripture have a large following among English-speaking Muslims, means any action against him could rebound against the United States in the larger ideological campaign against Al Qaeda.

The possibility that Mr. Awlaki might be added to the target list was reported by The Los Angeles Times in January, and Reuters reported on Tuesday that he was approved for capture or killing.

“The danger Awlaki poses to this country is no longer confined to words,” said an American official, who like other current and former officials interviewed for this article spoke of the classified counterterrorism measures on the condition of anonymity. “He’s gotten involved in plots.”

The official added: “The United States works, exactly as the American people expect, to overcome threats to their security, and this individual — through his own actions — has become one. Awlaki knows what he’s done, and he knows he won’t be met with handshakes and flowers. None of this should surprise anyone.”

I do not have time to comment on this now, but instead refer readers to a couple of discussions at Opinio Juris international law blog.  One is by Julian Ku, raising the basic question – but see the comments as well, including the brief comment by Kal Raustiala, author of a new and leading book, Does the Constitution Follow the Flag?, and comments from John Dehn at West Point, Jordan Paust at Houston, and Howard Gilbert as of now.

Then there is a post on a slightly different question from Kevin Jon Heller, asking about the effect in domestic law of a place where a killing might occur.  There should be some more comments to each.  I will try to get something up myself, but quite swept up in the broader targeted killing discussion, responding to journalists.  I will limit myself to noting that the legal answer is, in my view, yes – but how you get to yes differs depending upon whether you think this particular targeting is in an armed conflict in a strict legal sense, or whether you think it is an act of legitimate self-defense, as the Legal Adviser referenced in his ASIL speech.

It’s not true that everything I do is about drone warfare, but it has taken a lot of my time lately and, of course, a lot of stuff is happening, both on the operational side as well as legal side.  So here’s a little round-up of links, more or less at random.

First, the New York Times has a front page article today, looking at the impact of drones on terrorist and militant activities in Waziristan.  It is an interesting piece, not least because it acknowledges not just the effectiveness of the campaign, but the effectiveness of the Obama administration’s sharply ramped-up CIA campaign.  (HT Instapundit.)

A stepped-up campaign of American drone strikes over the past three months has battered Al Qaeda and its Pakistani and Afghan brethren in the tribal area of North Waziristan, according to a mid-ranking militant and supporters of the government there.

The strikes have cast a pall of fear over an area that was once a free zone for Al Qaeda and the Taliban, forcing militants to abandon satellite phones and large gatherings in favor of communicating by courier and moving stealthily in small groups, they said.

The drones, operated by the C.I.A., fly overhead sometimes four at a time, emitting a beelike hum virtually 24 hours a day, observing and tracking targets, then unleashing missiles on their quarry, they said.

The strikes have sharpened tensions between the local tribesmen and the militants, who have dumped bodies with signs accusing the victims of being American spies in Miram Shah, the main town in North Waziristan, they said.

The impact of the drone strikes on the militants’ operations — on freedom of movement, ability to communicate and the ease of importing new recruits to replace those who have been killed — has been difficult to divine because North Waziristan, at the nether reaches of the tribal area, is virtually sealed from the outside world.

None of those interviewed would allow their names to be used for fear for their safety, and all were interviewed separately in a city outside the tribal areas. The supporters of the government worked in positions where they had access to information about the effects of the drone campaign.

Along with that of the militant, the accounts provided a rare window on how the drones have transformed life for all in the region.

By all reports, the bombardment of North Waziristan, and to a lesser extent South Waziristan, has become fast and furious since a combined Taliban and Qaeda suicide attack on a C.I.A. base in Khost, in southern Afghanistan, in late December.

On the legal side, responses trickle in to Harold Koh’s statement about drone warfare in his American Society of International Law address.  As I’ve indicated, as someone who had been highly critical of the long wait for the US government to offer a defense of its lawfulness, I’m very pleased with the statement.  For precisely the reasons I’m pleased, of course, numbers of others are not so pleased, as Ari Shapiro, who was at the speech, noted in his story for NPR.  For a good, even-handed discussion of the Legal Adviser’s statement, see this analysis by Anthony Dworkin of Crimes of War, including the several links provided at the end.

At first sight, Koh’s justification appears to be based on the idea, familiar from the Bush administration, that the United States is engaged in a worldwide armed conflict with al-Qaeda and the Taliban and can use lethal force against anyone fighting on the other side. However a closer reading of Koh’s remarks shows that his position is not so clear-cut. Although Koh clearly refers to an ongoing armed conflict, he also offers the broader notion of self-defence as an alternative justification. This is clear when he answers the possible objection that drone strikes away from a battlefield constitute unlawful extrajudicial killing. Not so, Koh replies—a state “that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force.”

The suggestion here is that a state that is the subject of sustained threat from an armed group may use lethal force when necessary to defend the lives of its citizens, even outside the context of a recognisable armed conflict. And furthermore that this right of self-defence extends not just to targeting those individuals engaged in an imminent attack against the United States, but those members of the armed group who are integral to the group’s broader campaign of violence against US citizens.

What is striking in Koh’s speech is that the existence of an armed conflict and the broader right of self-defence are both offered as possible justifications without any attempt to delineate the boundary between the two: it is not clear how far Koh is claiming that the purported armed conflict against al-Qaeda and the Taliban extends. Does it cover military actions in Pakistan? Somalia and Yemen? The ambiguity here is consistent with the continued lack of a definitive statement from the administration about the precise legal contours of its fight against al-Qaeda, in a way that is visible as regards detention policy as well.

Koh’s suggestion that drone strikes might be justifiable as self-defence even outside a recognisable armed conflict is in line with the position of earlier US administrations, as the legal scholar Ken Anderson recently argued in an article for the Weekly Standard. But what is missing in the administration’s justification for the drone attacks is any sense of what the limits are on the use of lethal force against individuals who do not pose an immediate threat. The restrictions in the laws of armed conflict, which concern only whether the target is engaged in hostilities against the United States and the degree of harm to other civilians, do not seem adequate here.

I should add that although I do take the view that non-international armed conflict is defined by the facts of where sustained, intense, hostilities are underway – which is one reason I think the applicable legal ground in some cases is self-defense – and in that sense “geographically” limited, it is important to recognize that many in law and policy in the United States, at least, do not accept that at all.  The Wall Street Journal was one of the few major newspapers that said much editorially or as news about the speech; its editorial is here, overall praising the Koh speech:

Count us among those applauding last week for the Obama Administration’s robust defense of the use of unmanned drones for targeted strikes against al Qaeda in Iraq, Afghanistan and elsewhere. In a speech to the American Society of International Law, State Department Legal Advisor Harold Koh presented a broad assertion of the U.S. right to pursue and kill terrorists overseas, on or off an active battlefield.  In laying out the legal argument for the strikes, the former Yale Law School dean was, to put it mildly, meticulous, even fastidious.

Pushback was found, among other places, in some commentary at Huffington Post, for example, by human rights lawyer Chris Rogers:

Koh failed to address serious concerns over the U.S.’s use of drones to kill al-Qaeda and Taliban militants, and in particular the debate over strikes in Pakistan and other areas outside Afghanistan. Hopefully Koh’s remarks indicate that a fuller account of the U.S.’s legal position is forthcoming. But for now, the program remains shrouded in secrecy and Koh’s mere assertions of the program’s legality fail to provide the kind of accountability that is urgently needed.

My own assessment of the fall-out is that there is a general sense of satisfaction within the intelligence community that Dean Koh specifically distinguished armed conflict from self defense, although many in it would have preferred to see a direct reference to the CIA and the lawfulness of its role.  Those who were already critical are no more satisfied – partly, I don’t think it is snarky to say, because the issue is not really about knowing more about it, but fundamental objection to it.  Knowing more about it isn’t really the issue for the ACLU or the human rights groups or various UN officials.  Ben Wittes is right in saying that for the international soft-law community, it remains the Next Big Thing.

Over at Opinio Juris, Julian Ku points to today’s front page NYT story by Charlie Savage detailing secret memos and meetings among the leading lawyers seeking to address national security and terrorism issues, including detentions, drone strikes, the question of armed conflict, and other things.  In my posts, I have been focused on the question of drones and targeted killing, but of course that issue and its legal authorities are intertwined with other questions, such as detention.  It’s a long piece by Savage, introduced by saying:

The discussions, which shaped classified court briefs filed this month, have centered on how broadly to define the types of terrorism suspects who may be detained without trials as wartime prisoners. The outcome of the yearlong debate could reverberate through national security policies, ranging from the number of people the United States ultimately detains to decisions about who may be lawfully selected for killing using drones.

(Note: I started composing draft posts about Harold Koh’s important ASIL speech, particularly its discussion of drones and targeted killing, and concluded it would be better not to do a post that would turn into an online article, but instead some shorter posts on particular issues, even if they are somewhat random.)

Toward the end of the section on drone warfare in Legal Adviser Koh’s March 25, 2010 speech to ASIL is a discussion that runs to US domestic law and regulation.  For the first time in a very long time – it might be since Koh’s predecessor Abe Sofaer addressed the question in a 1989 speech – the meaning of “assassination” in US law and regulation has been addressed in an authoritative and considered way by a senior US government lawyer.  Legal Adviser Koh said with respect to “assassination”:

[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

To refresh on the background to this.  Apart from questions of international law, the US has had a domestic ban on “assassination” in the form of an executive order that has been in place (or renewed in slightly different language) since the presidency of Gerald Ford.  In 1976, in the wake of revelations of CIA activities in the Church Committee hearings, President Ford issued EO 11905, the single relevant sentence of which read:  ”No employee of the United States Government shall engage in, or conspire to engage in, political assassination.”  President Carter reissued the order in 1978 in slightly different language in EO 12036, which read in relevant part:  ”No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”  President Reagan reissued the order in 1981 using identical language in EO 12333:  ”No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”  EO 12333 was amended by subsequent EO’s, but the specific assassination ban text remains unchanged.

That said, the term “assassination” is never defined.  Whole forests have fallen as commentators, in law reviews and elsewhere, have debated its meaning over decades, however.  Does it refer to political leaders?  To whom does it apply or not apply?  Non-state actors?  Terrorist groups?  Political leaders of states with which the United States is at war?  Military-political leaders of such states (given how frequently that is the case)?  There is little material in the record as to what was intended – and perhaps not surprisingly.  What little anecdotal information exists from the EO’s issuance in the 1970s suggests that it was intended as a way of placating Congress, and avoiding an actual statutory ban.  The EO was apparently intended to be vague and undefined, and subsequent presidents – and, note, Congresses – have found that to be a useful ambiguity in which to leave it.  It has the status of a binding executive order in domestic law – and amendable, alterable, and revocable should the President want to do it.

I’ve never understood, to be frank, the scholarly agonizing around a single sentence with a wholly undefined term in an order not, and never, codified as a statute.  It defies interpretive settlement, I would have thought, precisely because it was not designed to bear any real legal weight.  It was instead merely a declaration in vague and general terms that whatever wicked killings the CIA did that were revealed in the Church hearings, those would not happen any more, a mea culpa and promise not to do some ill-defined bad things any more.  Well and good – the CIA did some bad and wicked things – but beyond that, one is not really going to get by textual interpretation.  Unsurprisingly, much of the commentary uses the interpretive discussion as a way of launching a normative view of when and what should be acceptable in the way of targeted killing.

The essentially normative launching pad of which much of the commentary consists is reinforced by the observation that US officials did offer two senior commentaries on the meaning of the ban in the late 1980s.  One was offered by senior law of war Department of Defense lawyer Hays Parks in a 1989 memorandum of law.  The conclusion of that memorandum, with respect to the use of military forces of the Department of Defense:

Assassination constitutes an act of murder that is prohibited by international law and Executive Order 12333. The purpose of Executive Order 1233 and its predecessors was to preclude unilateral actions by individual agents or agencies against selected foreign public officials, and to establish beyond any doubt that the United States does not condone assassination as an instrument of national policy. Its intent was not to limit lawful self defense options against legitimate threats to the national security of the United States or individual U.S. citizens. Acting consistent with the Charter of the United Nations, a decision by the President to employ clandestine, low visibility or overt military force would not constitute assassination if U.S. military forces were employed against the combatant forces of another nation, a guerrilla force, or a terrorist or other organization whose actions pose a threat to the security of the United States.

This analysis (or at least this particular concluding passage) is not explicit as to whether the act in question is murder because it is assassination and therefore unlawful, or whether it is assassination because it is murder and therefore unlawful.  In 1989, then Legal Adviser to the DOS, Abraham Sofaer, made a speech at the US Army JAG school in Charlottesville, Virginia, that spoke to this underlying issue of what is the predicate, independent violation of law, murder as such or assassination on grounds independent of murder:

The meaning of the term “assassination”’ in historical context, and in the light of its usage in the laws of war, is, simply, any unlawful killing of particular individuals for political purposes … virtually all available definitions of “assassination”’ include the word “murder,”’ which in law is a word of art. Murder is a crime, the most serious form of criminal homicide. That element is the most fundamental aspect of the assassination prohibition. All criminal killing is therefore potentially subject to the prohibition.

Under no circumstances, however, should assassination be defined to include any lawful homicide. Assassination is also commonly defined as killing with a political purpose. Murders that have no political purpose or context are criminal and remain subject to punishment, but these too should not be characterized as assassinations. Other elements offered in available definitions seem superfluous or even misleading. Thus, for example, whether a killing is done “secretly”’ or “treacherously”’ and whether the person is “prominent”’ would appear to be of little or no consequence for purposes of the Executive Order. Nor should it matter that the assassin “kills in the belief that he is acting in his own private or public interest”’ or whether the action is “surprising”’ or “secret.”  The pivotal elements in terms of controlling the behavior of government officials would seem to be illegality and political purpose … the historical background of the term casts considerable light on its meaning and strongly supports a definition limited to illegal, politically motivated killing.

The assassination ban, on this reading, argues that in order to be an assassination, the killing must already be unlawful on some independent ground – because it is murder, for example, or cannot be justified under international law of self-defense.  The result is that the ban on assassination becomes coincident with killing that would be unlawful under domestic or international law in any case.  The assassination ban does not include lawful acts of self-defense.

Consider again the Koh speech on this topic.  It too emphasizes that the ban is to be understood as not including lawful self-defense:

[U]nder domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.” (Emphasis added.)

This is one of several places in which the Koh address specifically distinguishes “self-defense” from “armed conflict.”  It expresses a view that when acting in lawful self-defense (which might or might not be “armed conflict” in a specifically legal sense of that term), targeting specific high-level belligerent leaders is not (independently) unlawful, and because it is not, it thus does not constitute “assassination.”

This is very significant, for at least two reasons.  One is that this reasoning adopts, as premise about international law, that there is a distinction between self-defense and armed conflict.  This is not the only place that the speech does so.  It specifically holds out that the possibility that there can be acts of self-defense separate from acts of armed conflict (I would say, though this particular passage does not, that lawful armed conflict is a subset of lawful self-defense).

Second, more centrally:  It clarifies, by essentially restating and reaffirming a legal view of the US government. one not re-stated (at least not plainly or very often, if at all, so far as I can tell) on both self-defense in international law and assassination in domestic law, dating back to the 1980s.  If the importance of the implication of the international law premise (the self-defense premise) is clear, however, why do I suggest that the domestic law interpretation of the assassination ban is also so significant? After all, it’s merely an executive order, alterable by a president at any time.

The reason I place such significance on this domestic law interpretation is practical.  Outsiders to government like me do not have much information on the thinking during the last two decades about targeted killing and assassination, including 1990s arguments over targeting Bin Laden and others.  Certainly I am not privy to any special information.  However, there is a reference to an OLC opinion from the 1990s, referenced in the 9/11 Commission report, about concerns that in order to avoid possible violation of the assassination ban, it was necessary to conclude that Bin Laden was a combatant, and therefore a target.  Otherwise – quite apart from any international law considerations – targeting him might contravene the assassination ban.

This led, so far as an outsider like me can tell, to push the US government, as it became aware of the Al Qaeda threat in the 1990s, to regard its actions as having to satisfy the requirements of combatancy, and not to assert any genuinely independent grounds of self-defense as a basis for targeting.  As I have argued at great length elsewhere, the collapse of the use of force into a binary consisting of law enforcement or armed conflict deprived the United States of recourse to the most useful and most obvious category of use of force – self-defense at minimal, targeted, discrete levels of violence that would not constitute a genuine legal armed conflict, using covert “intelligence” actors (or at least to accept constraints arising from a legal characterization of such intelligence uses of force that had to be based around the fundamentally armed conflict framing of combatancy).  Not an armed conflict because it would not be, paradoxically, violent, or intense, or sustained enough.  Which is, after all, what covert action is supposed to be, when successfully carried out as a use of force.

I believe that the precautionary legal view that the categories had to be either law enforcement or full-on armed conflict had an inhibiting effect on the effective use of force against Al Qaeda in the 1990s.  I can’t prove it or corroborate it; I’m not an insider in any sense.  However, I was always struck by a conversation with someone who was an insider in the 1990s; when I asked, sometime around 2004, why the insistence on establishing that someone was a “combatant” for purposes of targeting, the answer was immediate – “Oh, well, if we didn’t, we might be in violation of the assassination ban.”  No reference to a violation of international law – presumably because there was no ICC or courts of Spain or Baltasar Garzon in the mid-1990s – but a very real concern about US domestic law.

I won’t try to re-explain here why in my view it matters whether one appeals to combatancy as the legal frame, in an armed conflict, or the broader category of self-defense; it is discussed at length in this article, and for that matter I have raised it on Volokh and Opinio Juris (and the international law scholar Marko Milanovic has gravely disputed the self-defense argument at EJILTalk! blog).  Given the complete acceptance among the three branches of government that the United States is in an armed conflict with Al Qaeda – so that concepts of combatancy do apply – it would have been very easy merely to say, combatants in armed conflict can be targeted under international law, and targeting them does not violate the assassination ban.  Assuming that one takes a global view of the armed conflict (which, I should say, I do not, believing, as I do, that armed conflict with a non-state actor is limited to places of active, sustained, and intense hostilities, but leave that discussion for another post), one need not get into questions of self defense as an independent and broader category of the use of force.

The fact that this speech goes beyond armed conflict to the broader category of self defense speaks to the care that went into preparing this speech – with a view in mind of the needs of future presidents, facing future threats, and responsible for the safety of the United States of America in circumstances having nothing to do with Al Qaeda.  The Legal Adviser might have stopped merely with armed conflict, taking a narrow and presentist view that all that matters is Al Qaeda today, and not presidents tomorrow.  That he did not speaks highly of his long view of the presidency.  Because the law of self defense, while relevant today particularly to the use of force by the CIA, is most relevant to presidents stretching into the future.

But returning, finally, to assassination.  Yes, in my view, it matters a lot in a practical sense that officials of the CIA and other agencies are able to go about their business with considerably less concern that, quite apart from anything else, the one sentence concerning assassination in the EO might come back to haunt them as a matter of domestic law.  It’s not the end of the matter in a lawyerly sense, of course; memos need to be written, legal opinions given, and while I’m doubtful that the text of the EO would be modified to reflect this explicitly, that would be a good thing (it is possible that all of this has already happened inside government).  A single paragraph in a public speech does not take care of things all by itself.

Still, I think the Legal Adviser’s interpretation is correct, and I think it a matter of considerable significance that it so clearly draws upon a long-standing view within the US government, but one that had fallen (if this is not too strong a characterization) into a certain desuetude, at least to those of us outside of government.  Outsiders like me – and most readers – are not fully able to appreciate just how much work, digging, and evaluation of non-public legal memos, opinions, and reasoning dating back decades must necessarily go into what appears to be a simple conclusion in a couple of sentences.  The work behind it was, I’m certain, very substantial.

After getting a number of email requests for this testimony, I’ve posted it up for convenience at SSRN, although it is also available through the hearing page as well.  I submitted along with it my earlier Weekly Standard article, Predators Over Pakistan.  As I have said here earlier, however, this hearing on March 23 came just ahead of Legal Adviser Harold Koh’s March 25, 2010 ASIL speech.  Dean Koh’s speech addressed many of the criticisms made of administration policy on drones, and I should add, in ways that I thought substantively correct as a matter of legal policy.  I thought the Legal Adviser’s statement strong, clear, and substantively excellent.  Overall, I was pleased with the form and direction of its legal framework (if you look at the second half of the Predators Over Pakistan article, the more legally oriented part, you will see that my analysis tracks certain parts of the Koh speech analysis fairly closely).   I was also impressed with its directness – it was not filled with careful dodges and lawyerly hedges that would make it impossible to find a clear takeaway, quite the contrary.

There are many open questions, of course, and ways in which interpretations and legal judgments could go – but the statement on drones itself was impressively direct in what it chose to address.  So I strongly recommend reading this testimony, if you plan to, with the Legal Adviser’s text to hand.  (Below the fold is the SSRN abstract for my testimony.)

Other articles worth reading on the Koh speech?  Shane Harris’s quick take at the Atlantic is a useful one, likewise Ari Shapiro’s take at NPR (including his sense of the audience reaction at the ASIL meeting, which I was not able to attend), and I will post links to some other articles, including Peter Finn’s upcoming Washington Post piece.  In the academic blogosphere, reaction was not so enthused – although my Opinio Juris colleague Julian Ku was pleased that the Koh speech embraced the Bush rationale of armed conflict in addressing Al Qaeda terrorism, my other Opinio Juris colleague Kevin Jon Heller was not so enthused (although KJH was actually commenting on another part of the Koh address, on the ICC and the crime of aggression).  Diane Marie Amann was also not enthused.

In reading the entire speech – which ran over an hour to a packed hotel ballroom – and not just the parts related to drones, I was struck by a general, and in my view deeply important and (especially by academics like me who have never worked in government) underappreciated, question of lawyerly method, sources, methods of interpretation and grounds of authority.  Koh made this point by quoting from Walter Dellinger on his experience at OLC:

[U]nlike an academic lawyer, an executive branch attorney may have an obligation to work within a tradition of reasoned, executive branch precedent, memorialized in formal written opinions. Lawyers in the executive branch have thought and written for decades about the President’s legal authority…When lawyers who are now [in my office] begin to research an issue, they are not expected to turn to what I might have written or said in a floor discussion at a law professors’ convention. They are expected to look to the previous opinions of the Attorneys General and of heads of this office to develop and refine the executive branch’s legal positions.

I think this is important as a question of method and authority in international law as expressed by the United States as its binding obligation.  When the Legal Adviser’s office sat down to come to a view (and with, drawing on an earlier section of the speech, the extraordinarily difficult and complex task of coordinating with other agencies of government and their lawyers), in other words, it presumably looked to its own practices, opinions, internal conclusions and advice to the executive branch, and so on.  Not to outside scholarship, or at least presumably not until well down the path of interpretive authority within the internal structure of interpretation and legitimate legal authorities within the context of US government lawyering.

Like most academics, particularly when dealing with an administration with a sizable number of lawyers who come from academic communities such as my own, I certainly want to believe that Everyone Who Is Anyone is reading … my stuff.  But of course it’s not true and, more importantly, it shouldn’t be true.  Not except as very, very tertiary.  Why?  Because authority in law is partly a question of the logic, compelling or not, of the ideas and argument expressed – but its legitimacy is also partly a question of its provenance, particularly in the law of a democratic government, in which the legitimate authority of law is partly about internal logical consistency but also partly about consent of the governed.  Who said it also matters.

Continue reading ‘Drone Warfare Subcommittee Testimony, Up at SSRN’ »

Update:  I have had a chance to watch the video twice – I strongly recommend watching it, as it adds considerable language to the statements below in the press release.  And welcome Instapundit readers and any others.  Given how much I have pressed publicly for a statement by the administration’s lawyers, I want to say this much even while I’m still doing a careful lawyerly parsing of the text.

First, let me praise Harold Koh for stepping up to the plate.  This is a plain, clear statement of the US view of the law and its application.  It is measured, and yet exceedingly direct.  My thanks and congratulations to the Legal Adviser for something that stands as clear opinio juris of the United States.  As someone who has been calling every more sharply for a public statement by the administration’s lawyers on targeted killing and drone warfare – most recently in a Weekly Standard article on exactly that theme, again this week in a sharply worded statement to a House subcommittee hearing, and an Ari Shapiro interview on NPR this morning recorded a a month ago – this was an enormously positive step.

Second, on the substance.  On first read, I think this is a great statement.  It addresses an armed conflict with Al Qaeda, the Taliban, and associated forces.  But it also asserts self-defense several times as an alternative.  I had been greatly concerned that the administration’s lawyers would narrowly confine the justification for targeted killing using drones to situations that would really only cover the military using them on active battlefields. But on first read, this statement does not do that at all. It appears to address situations of safe havens, for example, and indeed reasserts the traditional US view – that sovereignty and territorial integrity are important, but the US preserves its rights to go after its enemies in their safe havens.

I want a chance to go over the written text and say something much more exact.  But given how much, particularly this week on account of the Congressional testimony, my criticisms of the administration’s lawyers have been in the news, I would like to make it known as publicly as possible that, on first read, the Legal Adviser’s statement on targeted killing and drone technology is very positive, very strong, and admirably forthright.  My congratulations and thanks to the Legal Adviser.

*

I was teaching classes and unable to attend, much as I wanted to, DOS Legal Adviser Harold Koh’s keynote address at the American Society of International Law annual meeting tonight.  Shane Harris sent me along the press release from ASIL with these excerpts from Dean Koh’s address specifically on the topic of drones.  I have barely had a chance to skim this and have not seen the full text, so I will refrain from commenting at all until I’ve had a chance to read this through.  But I wanted to post this immediately for interested readers; I will now read it through and watch the video):

Koh’s wide-ranging remarks on the Obama administration’s international law policies included a specific affirmation of the administration’s approach to the use of force, including the use of unmanned aerial vehicles (UAVs), which has recently come into question by some legal experts.  Among Koh’s statements regarding the use of UAVs are the following.

“…[I]t is the considered view of this administration…that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war….As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us.  Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks….[T]his administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

-                             First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and

-                             Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

In U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.”

Responding to some recent arguments made against the use of UAVs, Koh defended the administration’s policy saying:

“[S]ome have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war.  But individuals who are part of such an armed group are belligerent and, therefore, lawful targets under international law….[S]ome have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations.  But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict – such as pilotless aircraft or so-called smart bombs – so long as they are employed in conformity with applicable laws of war….[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing.  But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.  Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise.  In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting.  They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law….Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations.  But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of wear – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination.’”

To view video of the relevant portion of Koh’s address to the Society, visithttp://fora.tv/v/10561.

Yesterday (Tuesday, March 23, 2010) I was pleased to appear as a witness before the House Subcommittee on National Security and Foreign Affairs, to discuss drone warfare and Unmanned Aerial Vehicles (UAVs).  The list of witnesses is here, along with a link to a webcast (which I can’t seem to open), and links to the witness statements.  I am always fascinated to listen to Brooking’s Peter Singer, author of Wired for War, and the rest of the panel was equally interesting, especially on the technical aspects of UAVs.

I was particularly interested to hear in this session discussion of the many ways in which UAV technology is entering civilian fields – everything from crop dusting to monitoring schools of fish from the sky.  Someone mentioned (but I haven’t verified) that University of Nevada now offers a degree program in UAV control.   My points were fairly removed from much of the rest of the technological or military discussion, being aimed squarely at policy and legal policy concerns.  In my oral statement, I emphasized the following:

• The Obama administration has embraced drone warfare, but its lawyers have not caught up; presumably they have private concluded that the several drone warfare programs underway are legal, but it is not a good idea to keep the rationales secret.  Not, at least, with a program in Pakistan that is only a matter of official denial, not secret.  It leaves the President and operations people on down hanging out there exposed.
• The drone warfare campaign embraced most thoroughly as a strategic matter – correctly, in my view – by the senior administration officials starting with the President is not the “hot battlefield” use of drones, in which they are essentially a substitute air support weapon for a manned system.  It is, instead, the use of drones in a role unique to them, as a targeted killing mechanism for use in places far off of active battlefields.  There are some questions raised about military battlefield use of drones, but the real questions lie off the active hot battlefield – and it is these uses that are the real reason why senior Obama officials have celebrated them.
• The fundamental issue in a legal policy sense, then, is not so much drones as such – it is their use in a campaign by the CIA of targeted killing.  A better way to understand the drone debate is that this emerging technology has forced onto the table discussion of the lawful and appropriate role of the CIA, in the use of force, and in covert operations using force.  Much of the purely military discussion is interesting technically, but legally somewhat beside the point at least at this point.  A millimeter beneath the surface of the drone discussion is the question of the CIA.  This is the point of the attack on the CIA’s role as criminal made by Mary Ellen O’Connell, and also by Gary Solis in his characterization of America’s “own unlawful combatants.”
• CIA director Leon Panetta has been engaged in a vigorous public defense of the drone program of targeted killing by the CIA.  I am all in favor of it, of course – but as a friend of the program, so to speak, and happy as I am to see Panetta speak up, his defense of the CIA program is slightly beside the point.  He defends the success of the program. Leaving aside criticisms of “blowback” – easy to make, hard to prove or disprove, frankly, but leave that aside – for most of us the success of the program is not the issue.  At issue is its legality, not its success.  Or at least, to know on what basis the lawyers think it is legal.  (Which, note to the Al Jazeera interviewer yesterday following the hearing, I took great pains to distinguish – I do not question the legality of the program as such, I question which legal rationale for its legality is the right one).
• Even you believe targeted killing using drones is, as a general proposition, legal under domestic and international law, as I do, it matters what kind of legal rationale one asserts for it.  Not all lawyers would agree, to be sure, and I suspect this includes lawyers inside the administration, but in my view it matters whether one adopts an “armed conflict” justification in which, when the US targets someone in Pakistan or Yemen or Somalia or wherever, that person is determined to be a lawful target – and it doesn’t matter, for the bare legality of targeting, where he is located.  The armed conflict goes where the combatant goes.  Mumbai, Mogadishu, wherever.  I think this is wrong as a question of the laws of armed conflict, because it does not adhere to the threshold requirements of this peculiar non-international conflict with a non-state actor taking place on a global basis that the US has with Al Qaeda.  In my view, the proper legal frame is international law of self-defense – and it is what the US has traditionally viewed the exercise of these discrete uses of force by the CIA, covert or clandestine, as being anyway.
• These two legal rationales eventually lead to different legal conclusions, constraints and authority for the use of force, unless one uses very awkward legal reasoning to force these very different uses of force altogether into the same frame.  My view is that forcing CIA targeted killing in places that might range widely in the world into armed conflict rationales is bad for the CIA’s legal reasoning – and requires ever greater legal contortions to make it fit into a model of armed conflict law that is fundamentally about the overt meeting of armies and state forces, not covert ops and intelligence services using force.  I don’t think it is a stable legal view for the CIA over the long term.  Moreover, as I thought in analyzing the Bush administration’s “global war on terror” legal frame, forcing all uses of force outside of plain law enforcement into the armed conflict box of law for overt war distorts that body of law and its interpretation, too.  It isn’t about regulating covert ops and intelligence services – there was a good reason why, during all those decades before the 1990s, exceptional and extraordinary uses of force by the covert civilian services was regarded as not unlawful under international law, but not part of the law of armed conflict, either.

Part of the “framing” problem of law here is that it is not just a division of the military operations from the CIA ones, overt from covert.  The Pakistan program by the CIA is, obviously, not covert – it is an operation in formal deniability – the ability to say at least officially (US and Pakistani officials), US military forces are not operating on the ground in Pakistan.  But, as Peter Singer pointed out in yesterday’s hearing, the scale of this non-covert program is up at the level of the opening of the Kosovo air campaign in 1999 – it is up there at the level of “real” war.  It might well be that the proper legal characterization of the CIA’s role in that theater of hostilities is not “self defense” operations as I would use to characterize the CIA operations in other places, smaller, more discrete, and perhaps genuinely covert or closer to it.  Quite possibly operations in Pakistan by the CIA have to be treated as part of the armed conflict.

The point is that a “deniability operation” (if it can be called that, to distinguish from truly covert) on a large scale eventually starts to resemble “hostilities” in a legal sense and in this case eventually merges geographically into the classic hostilities situation of non-international armed conflict that spills over a border.  If that is the case, then quite possibly it should be characterized as part of a single AfPak theatre of hostilities.  With, therefore, an armed conflict rationale for activities by the CIA.

But I do not think this rationale will work for the operation that matter into the future as Islamist terror groups morph and change and seek safe haven in other places.  Nor do I think it will work for post-Al Qaeda groups.  For those, I would opt for self-defense as Abe Sofaer characterized it in 1989.  And, to be clear, if that is the rationale, it does have to remain – as Gabriella Blum noted in a Harvard symposium on this a few weeks ago – exceptional measures.

So I think it will turn out to matter quite a lot over the long term that the Obama lawyers eventually opt for the specific law of armed conflict, including its definitions and thresholds under treaty and customary law, or some customary law of self-defense.  My guess is that the administration’s lawyers will finally opt for what appears to them to be both a narrower and a superficially reassuring ground of armed conflict that allows them to say that everyone being targeted is a “combatant” in a legal sense.  Again, my own view is that this won’t work over the long run – it will degrade as a rationale for the CIA under withering attack from the soft-law community, and it will have a tendency to degrade the law of war itself as rationales suited to a body of rules about large scale, or at least overt, conflict modeled on inter-state armed conflict, continues to pressed into service in an area that is mostly about covert or clandestine operations, and which aims to avoid overt war.

Put more bluntly, as a political evaluation, I think this rationale will work so long, but just so long, as there is an Obama administration.  As a legal rationale, armed conflict as a rationale will turn out to be a legally and politically “wasting asset.”  The legal attacks on targeted killing and the use of drones therein will be developing, but won’t ripen into active claims of war crimes, and so on, at least ones that have teeth, until the Obama administration leaves office.  Like many of the Bush-era legal tools in counterterrorism, my guess is that the Obama administration will rely on them in point of fact – but not legally defend them in ways that leave them plainly and cleanly available to the next president or future administrations.

Jonathan Manes, the ACLU lawyer whose work and presentations I have cited a couple of times in posts here at Volokh, and someone for whom, despite some fundamental agreements, I have great respect and like very much, has responded with the following letter.  He has given me permission to post it here.  The most important issue is the question of whether I have correctly represented his or the ACLU’s position on the question whether a problem with drones is that they make resort to force by the US too easy.

I don’t believe that it’s proper for me to editorialize on my views here, when the post is really to allow a “letter to the editor,” so I will simply post the letter below; I’m also not opening it to comments. I encourage you to read the FOIA request that Jonathan drafted on behalf of the ACLU (as well as review, if you are very ambitious, the panel discussion at Harvard – although I agree entirely (as I remarked with a similarly impromptu discussion by Harold Koh) that one should not hold people to the strict words of an impromptu panel discussion, and if Jonathan feels that I’ve played “gotcha” unfairly, then my apologies). (I am stealing time in a meeting – one of the deans will shortly glare at me, with good reason – and I will have to provide a couple of background links later, including a couple in Jonathan’s letter that I can’t reproduce at this moment.)

One thing I should add, though, is that whatever Jonathan and I do disagree about, we agree altogether on the need of the US government to offer a legal rationale for the practice.  As I said in my last post, CIA director Panetta’s assertion that the program is legal does not tell us enough to form a view.

Okay, with that, my thanks to Jonathan for taking the time to respond in so thoughtful a fashion and so advance this discussion.  (Dated March 22, 2010.)

Dear Ken,

I very much enjoyed meeting you and speaking with you at the conference last week. In case you hadn’t seen it, I thought I’d pass along this recent news item, which quotes Harold Koh saying he has conducted a legal review of the drone program and that the administration is likely to disclose its legal rationale.  In light of our conversation, I think we’ll both agree that this is a very positive development!

Also, this past weekend I came across the item you posted on Volokh debriefing the HLS conference. I also saw the recent posting about your upcoming Subcommittee testimony. Both of these postings were engaging, as usual. But in both cases you unfortunately misinterpret part of my HLS presentation and the ACLU’s position, prompting this reply, which you should feel free to post on Volokh or elsewhere.

You’re right that at the conference I made the point that drones and other remote-controlled technologies make it easier to project force anywhere in the world. As a factual matter, this seems clearly to be true. As was discussed at the conference, drones are cheap to produce, easy to use (requiring only a few months of training), and less costly to deploy than ordinary weapons systems. But the point of highlighting that fact was emphatically not to suggest that keeping troops out of harm’s way is a bad thing, or that troops should be put in danger in order to “restrain” the U.S. I didn’t make that point, and you’re incorrect to attribute it to me or to the ACLU.

So, why mention the fact that drones are easier to deploy than other weapons? The point of my presentation was transparency, and I was making the case for why basic information about the drone program should be disclosed. Remote-controlled technologies allow the U.S. to wage war without putting troops in harm’s way. Keeping troops safe is clearly a good thing. But when force is deployed primarily by remote-control, people might be less motivated, by their affinity and concern for soldiers at risk, to scrutinize what the government is doing. As such, when it comes to drone warfare, it is especially crucial to be vigilant in demanding transparency, so that the public knows what the government is doing in its name abroad.

The ACLU, the organization that I work for and represent as a lawyer, has filed a FOIA request and lawsuit in order to serve this democratic function. The ACLU is trying to facilitate the kind of public debate and discussion that is necessary and appropriate in a democracy when it comes to using lethal military force abroad. Targeting and killing specific people who are off the battlefield also raises significant civil liberties concerns – especially when the targets can include U.S. citizens, as the government has acknowledged. The public therefore has a right to the kind of basic information we’re seeking in this FOIA: the legal rationale and limits on the program, the internal oversight that ensures these methods are not abused, and the results of the program, in terms of civilian and non-civilians killed. Disclosure of this kind of information is important to satisfy the public that its government is conducting the drone campaign in a manner that is consistent with U.S. law, values, and interests. (It is also not the kind of information that should jeopardize national security if released – if it does, the government will surely withhold the documents and let us know why they can’t be released.)

That, in short, is the rationale for the ACLU’s efforts on the drone issue. As such, it is simply not the case that “the ACLU has decided to campaign on the issue of jus ad bellum, whether the US should be resorting to force and to what extent.” And let me be clear: the ACLU does not believe – nor did I express – the view that “the US needs to be restrained — through direct and personal exposure to death on the part of its soldiers — in order that it have the proper incentives not to over-resort to the use of force.” Perhaps other groups make this argument. But not the ACLU.

I appreciate that in discussing complicated matters like these, it is easy to be misunderstood or to misread a person’s meaning. But because you came away with the wrong impression from my talk, and because in your recent post you again misattributed this argument to me and the ACLU, it’s important that the record be corrected.

Having said all that, I concur with you that we agree on at least two things — i.e., the need for the administration to disclose the legal rationale for the drone program, and that there are geographical limits on the IHL justification for using drone strikes. But in light of what I’ve said above, it should be clear that we agree on more than just the two points you mentioned. Like you, I deplore the loss of soldiers’ lives in combat. I have immense respect for those who choose to serve in the armed forces. Some of the sharpest and most honorable people I have met are current or former servicemembers, including among them Tad Oelstrom and Missy Cummings, our fellow presenters at the HLS conference. As such, the suggestion that I think that U.S. lives should be put at risk unnecessarily – in order to create “the proper incentives not to over-resort to the use of force” or otherwise – is repugnant. Likewise, I imagine that we share a strong concern that the people on the receiving end of U.S. weapons not be civilians, and that the military do everything it can to minimize the loss of innocent life.

In any case, I, too, thought that the conference was extremely interesting and useful. The combination of speakers and topics was very good. I am grateful to the Harvard National Security Journal for putting it on and inviting me to attend. I also enjoyed meeting and chatting with you. And I am hopeful that the next time we meet, we’ll find at least a few more things to agree on!

Best wishes,

Jonathan

–

Jonathan Manes

Legal Fellow | National Security Project

American Civil Liberties Union Foundation